Conflict Avoidance in the Law of Patents and Trade-Marks

Abstract

The law of patents and trade-marks is notoriously difficult and complex, but from the aspect of the conflict of laws, it is relatively simple. Situations and relations in which a conflict of laws arises are not frequent, and when they do occur, the applicable law is, in the majority of cases, easy to determine. Therefore, the conflict of laws is much more of a fringe problem to the patent and trade-mark lawyer than to the commercial lawyer.' Two cardinal problems continually face the patent and trade-mark lawyer: Is the patent: or trade-mark valid? Is it infringed? There is only one law applicable to these problems-namely, the law of the where the patent or trade-mark was granted and/or is registered, the so-called country of protection-and, accordingly, no conflict of laws can arise in these connections.2 Furthermore, proceedings for the revocation of a patent or for declaring a patent null and void, as well as proceedings to expunge a trade-mark from the register, can be heard only in the of protection.3 Thus, for example, if an Englishman, E, owns a German patent and another Englishman, F, wishes to institute proceedings to have the German patent declared null and void, F must institute the proceedings in the German Patent Office and cannot bring the case before the British Patent Office or the English courts, even if E agrees. This follows from the fact that a monopoly granted by the government of one cannot be revoked by the courts or offices