Violation - Enforcement against trademark counterfeiting is extraterritorial, not domestic

Today, e-commerce and the sale of products occurs on a global scale. Whereas commerce and the trade of goods used to be done almost entirely within a territory or through goods moving across borders, the global supply chain now has many different forms and can cross many borders, jurisdictions, and the online space. While reaching consumers has become easier for sellers, protecting intellectual property has become increasingly complex. Globalization is prompting a reevaluation of this field as the Internet reduces the importance of national borders. Trademarks are particularly susceptible to the effects of globalization because, unlike copyrights and patents, trademark law is perceived, at least in the United States, to “extend across national borders.”1 In this paper, we focus on the enforcement of trademark rights, particularly those used against counterfeiters. We examine the concept of extraterritorial enforcement of trademark rights—the extending of enforcement across national borders—and review how different countries and jurisdictions approach this practice. In order to examine extraterritoriality in this context, we need to review the history and basis of jurisdiction. In the global enforcement of intellectual property rights, a general principle of territoriality exists.2 This principle exists beyond the scope of intellectual property and goes to the root of international law, noting that countries, or nation-states, can only enact and enforce laws within their own territory.3 This concept originates in public international law and can be found in international intellectual property conventions and treaties, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights,4 the Madrid Agreement Concerning the International Registration of Marks,5 and the Protocol Relating to the Madrid Agreement.6 However, while spelling out details of enforcement in intellectual property, these international agreements contain only minimum standards,7 and each individual country must have domestic implementing legislation to enforce that law and fulfill their treaty obligations.8 Once a country creates and implements domestic legislation, the executive, judiciary, or other appropriate government body interprets the laws, which is often where we see the doctrine of extraterritoriality arise.9