Lessons from the United States in Regard to the Recent, More Flexible Application of Injunctive Relief
INTELLECTUAL PROPERTY ENFORCEMENT: INTERNATIONAL PERSPECTIVES, Xuan Li & Carlos Correa, eds., Edward Elgar Press, Forthcoming
46 Pages Posted: 30 Aug 2009
Date Written: 2009
This book chapter examines the developing law in the United States regarding judicial decisions to grant or to deny various forms of equitable injunctive relief and the lessons it may provide to developing countries considering legislative and judicial intellectual property enforcement policies. It focuses on the issues of judicial discretion and the effects of orders to infringers to cease infringing activities, analyzes the recent US Supreme Court decision, eBay, Inc. v. MercExchange, L.L.C., and the effects of that decision on subsequent jurisprudence, places judicial flexibility and discretion in an international context, explaining why the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) does not meaningfully limit domestic legislative and judicial decisions to grant or to deny prospective injunctive relief, and identifies important policy considerations for legislators and judges in other countries, which include the amount of compensation considered to be fair and adequate for different types of intellectual property rights holders; the costs of judicial supervision of injunctive remedies, and concerns that such remedies may excessively empower rights holders; the potential for injunctive remedies to deter legitimate challenges to the validity of asserted rights; and the public interests that warrant authorizing prospective infringement.
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