09/24/2018

Extraterritorial Jurisdiction vis-à-vis Sovereignty In Tackling Transnational Counterfeits: Between a Rock and a Hard Place?


Extraterritorial Jurisdiction vis-à-vis Sovereignty In Tackling Transnational Counterfeits: Between a Rock and a Hard Place?

Qingxiu Bu

Transnational counterfeiting has grown tremendously with the increasing interdependence of global economy. The process of illicit financial flow has outpaced the growth of mechanisms for global governance, and the resultant deficiency produces regulation vacuum where the cross-border crime can thrive. It is very necessary to consider the effect of service process of foreign defendants getting evidence. As illustrated in Gucci’s case, the U.S. court face great challenges in addressing extraterritorial jurisdiction. In the context of extraterritorial discovery, it remains unresolved how to prioritize competing jurisdictional claims. Remediation is compromised due largely to sensitivities over national sovereignty. The broad interpretation of sovereignty makes the Bank of China (BoC) operate behind a firewall that keeps it immune from the jurisdiction of U.S. courts, leaving the brand owners vulnerable. A deadlock arises between proper exercise of extraterritoriality and critical response to the current increasingly complex cross-border counterfeiting. At stake are fundamental questions of conflict of laws. A valid nexus is indispensable to justify a U.S. court in applying the Federal Rules of Civil Procedure (FRCP) 45. Given the unviable course of action via the Hague Evidence Conventions, it is argued that greater legal protections for U.S. entities via subpoenas are a more feasible solution. In response to the global challenge, more multipronged approaches should be adopted to combat the transnational counterfeiting crime.

100 J. Pat. & Trademark Off. Soc’y 69(2018)

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