Transnational Competition : From Enforcement of Foreign Unfair Competition Judgments to Global Trademarks

This paper exposes, for the first time, the urgent risks emerging from applying the recently-concluded Convention on the Recognition and Enforcement of Foreign Judgments to unfair competition judgments, leading to the creation of global trademarks. Already acceded to by the EU and signed by the US, the Convention will enter into force on September 1, 2023. Analyzing the interplay between unfair competition, intellectual property (IP), torts, and private international law, using the prism of international instruments, the paper exposes the threats to national trade, competition, and IP policies concealed within the Convention. While the Convention excludes the enforcement of foreign IP judgments due to the principle of IP territoriality, the Convention does apply to tort judgments. Classifying unfair competition judgments as tort judgments, thereby obligating Member States of the Convention to enforce them, will de facto bypass the exclusion of IP from the scope of the Convention, and will undermine national policies and the principle of territoriality. Moreover, due to the overlap between unfair competition and IP, combined with the ubiquity of the global online market, and considering extraterritorial, global injunctions recently granted by national courts, the enforcement of such foreign judgments will lead to the creation of global trademarks. The paper contends that the risks emerging from the possible enforcement of unfair competition judgments should support an interpretation excluding such judgments from the scope of the Convention, and argues that Member States of the Convention should guarantee this interpretation in their national laws, in order to protect their national policies