Counter-interpretation: Domestic describes the location of property rights and infringement, not where protection has to occur.

A presentation of the forum delicti would not be complete without some words on the extent of jurisdiction. Under the Brussels Regulation, most commentators agree that jurisdiction based on infringement is limited to those infringements that occurred in the forum state (“mosaic approach”).73 Some74 justify this by an application of the Shevill decision of the European Court of Justice75 on intellectual property law; others come (more convincingly) to the same conclusion by pointing to the fact that infringement occurs in the forum state only with regard to domestic intellectual property rights, which necessarily leads to jurisdiction being restricted to the infringement of domestic rights.76 Irrespective of its doctrinal justification, the “mosaic approach” places a substantial burden on the plaintiff to litigate worldwide infringements. In most cases this can be justified by the possibility to sue either for all infringements in the place of the defendant’s residence77 or to sue only in those places of infringement where the lion’s share of the sales are found, expecting that losing these markets will make it unattractive for the infringer to continue his conduct. For these reasons, Article 2:203(1) of the CLIP Principles adheres in principle to a strict “territorialization” of infringement jurisdiction: the provision limits the scope of jurisdiction to infringements that occur or may occur within the territory of the state in which that court is situated. However, the territorial fragmentation of infringement jurisdiction appears unsatisfactory if the infringement is carried out through ubiquitous media such as the Internet, and a concentration of all claims in the state of the infringer’s residence seems inappropriate because this state has, for lack of substantial effect, no interest in litigating the worldwide infringement.78 In such a situation in which the infringer directs almost all his activities to states other than his home state (which might be a copyright haven), Article 2:203(2) CLIP makes a worldwide concentration of all infringement actions in one forum (other than the infringer’s residence) possible, provided that substantial activities in furtherance of the infringement in its entirety have been carried out within the territory of the state in which the court is situated, or79 the harm caused by the infringement in the state where the court is situated is substantial in relation to the infringement in its entirety.80