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主题:知识产权的国际案例

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知识产权的国际案例  发帖心情 Post By:2009-10-9 18:16:19 [只看该作者]

Malina, Inc., an American company, with its European headquarters in Ireland, manufacturers and distributes a board game called FUNDGAME. FUNDGAME is a game designed for four players, over the age of twelve, in which each of the players (“Fund managers”) attempts to manage a portfolio of stocks and shares and maximize the financial value of that portfolio. Whoever is the last to go bankrupt wins the game. Malina owns national trademark registrations for the mark FUNDGAME for board games in the United States, Ireland, the United Kingdom, France, Germany, Austria, and Canada. Malina also claims copyright in the graphic design of the boards on which the game is played and the artwork on the different cards that players pick up and trade as the game progresses. FUNDGAME has been sold in the United States since 2005. In 2007, Malina started selling in Europe and the rest of North America and the game has become a huge commercial success. Indeed, the game has become so iconic that the “characters” that the players assume while they compete in the game (for example, “Joe the Joiner,” “Fred the Fraudster”, “Sarah the Sorry”) have become popular cultural references. And pictures of the characters on the cards used by players during the game have become valuable as works of art in themselves. Berty, Inc. is an Irish company, with its principal place of business in Munich, Germany. It operates a website at www.berty.eu. Although primarily in the English language, with limited capacity to be read in German and French through a translation function on the page, the website is hosted on a server in Germany. On the site, Berty allows participants (over 18 years old) around the world to gamble on a number of sports events. Berty also allows access to various online games, in which participants can compete in cyberspace with other participants throughout the world. For example, it runs an online poker game in which participants can win up to 25,000 euros per game. Beginning in early 2008, Berty started offering its website users the chance to participate in an online version of FUNDGAME – but with real cash (up to 10,000 euros per game) at stake. It calls its game GAME THE FUND. The user interface for the GAME THE FUND game very closely approximates the board used in FUNDGAME. Berty claims that its board game simply highlights the naiveté of Malina’s game in a time of economic crisis, and allows web users who really understand the significance of managing portfolios to prove it! Although the home page of the web site is accessible worldwide, Irish and US law impose very strict regulations on online gambling. Berty decided that it did not wish to comply with those regulations and so would not allow anyone in Ireland or the US to participate in the online games. To police this, Berty insists that participants have a password to access or view the pages with the games. They must provide Berty with details of their email address and telephone number in order to receive a password. An .ie address (which covers Ireland) or a .com address (which is the most common US email address) prevents a password from being issued, as does an Irish or US telephone number. Participants are not required to pay Berty to play; Berty makes its money from advertising on its web site. The largest number of participants playing GAME THE FUND is from Germany. Berty is, however, about to actively solicit business in the South and East Asia. Since these are markets that Malina wants to mine as well, it is becoming increasingly annoyed. Malina alleges that Berty has infringed its several trademark registrations in the mark FUNDGAME by its use of the mark GAME THE FUND. Moreover, Malina claims that Berty has engaged in copyright infringement by using a user interface that is substantially similar to the design of the board in FUNDGAME. (a) Malina would like to obtain relief as efficiently as possible—that is, without bringing numerous separate lawsuits. Given this goal, and based on the facts above, tell me where would you advise suing and provide a detailed explanation of your reasoning. Would your answer change if the defendant intimated that it would defend the law suit by challenging the validity of the FUNDGAME mark in Germany? Explain. (b) Assume that Malina (possibly against your advice) decides to sue in Ireland, seeking damages for trademark infringement in all the countries in which it held rights. Berty defends the lawsuit by challenging the validity of the FUNDGAME mark in Germany. Can the Irish court retain jurisdiction over the case? Could the Irish court stay the action in Ireland and instruct Berty to seek immediate cancellation of the German registration -- failing which the case would proceed in Ireland? If Berty did seek to cancel the German registration, but the German authorities upheld the validity of the mark, could the Irish court continue with the case? Explain. (c) If the principles set out in the American Law Institute (ALI) Principles on Jurisdiction, Choice of Law and Judgments in Transborder Intellectual Property Disputes were applicable to this Problem, how would your answer to (a) change? From a policy perspective, is the approach of the ALI preferable to that set out in the Brussels Regulation? In US law? If so, why? If not, why not? (d) Assume that Malina instead decides to sue in the United States, seeking damages for copyright infringement throughout the world. Which law should the US court apply to the question of infringement? (Since there are so few precedents, feel free to use any that you know of that are helpful, no matter what the origin). If the rules set out in the ALI Principles were applicable, which law would apply? Explain.

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