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In recent years, intellectual property law has paid increasing attention to issues of private international law. The American Law Institute promulgated Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Dispute in 2008. In Europe, the Max Planck Institutes’ Conflict of Laws in Intellectual Property Conflicts of Law effort is expected in 2010. However, neither of these projects has dealt explicitly with choice of law on contributory liability (or any other form of secondary liability that makes one party liable for the harm caused by another). Yet, actions premised on secondary liability are rapidly becoming the favored route for efficient enforcement on a worldwide basis. Examples include cases that attempt to impose liability on manufacturers of copying technologies for infringements caused by those who use their equipment; on purveyors of peer-to-peer file sharing software for the activities of those who download material without rightholders’ permissions; on internet service providers for subscribers’s infringing postings; and on other intermediaries, such as auction sites. In principle, secondary liability actions can occur in all areas of intellectual property law. However, for purposes of this paper, we concentrate on trademark cases, such as the litigation involving the responsibility of the online auction house, e-Bay, for the sale of counterfeit goods on its website. The problems posed in that area are particularly complex. After offering a stylized fact pattern to illustrate the problems, we consider the different ways in which courts might deal with questions arising in cases where secondary liability claims are asserted. We suggest that the traditional approach to choice of law in trademark cases generates unacceptable uncertainties for intermediaries and that a genuine engagement with conflicts scholarship would help mediate among the diverse interests and policy concerns. In the end, however, we conclude that private international law solutions may not resolve all the complications of multinational secondary liability cases. Thus, we are moved to propose, as an alternative solution, an autonomous (substantive) principle applicable in these cases. We conclude with some thoughts about how the different approaches engage with existing models for the resolution of trans-border intellectual property disputes and with the international intellectual property regime more generally.
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