On 6/4/97, Jeremy G Byrne <jeremy[_at_]midnight.com.au> wrote:
> > >
> > > What provisions could _possibly_ exist to exert jurisdiction over
> > > a "foreign defendant" hosting a site from a county outside the
> > > Berne Convention, WTO etc. (such as Iran, Ethopia, the Cook
> > > Islands or San Marino)?
> >
> > if the trademark infringement has an impact on U.S. commerce,
> > U.S. nationals are involved, and the suit will not offend the
> > substantive law of another soveriegn, U.S. courts will take
> > jurisdiction under the Lanham Act
>
> So what you're saying is that the foreign national would be
> prosecuted, under the Lanham Act, in a US Court, under US Law.
Yes, if personal jurisdiction lies. The extraterritoriality of the Lanham Act goes only to subject matter jurisdiction. The proceeding would be civil, not criminal.
> Is this regardless of whether the foreign national is offending
> substantive law in his or her own country?
Please re-read the paragraph I wrote above. The third part of the balancing test inquires whether "the suit will offend the substantive law of another soveriegn." I am aware of at least one case (Vanity Mills) where a U.S. court has declined jurisdiction on those grounds.
> How would you forsee the US Courts might proceed from a judgment
> against a foreign national in such a case?
First, it depends on who the foreign "national" is. You seem to be assuming a natural person, but "he" will more likely be a corporation.
The two most likely possiblities would be to attach the defendant's U.S. assets, or, if he has none, to attempt to enforce the judgment in a nation where assets are present. The U.S. has reciprocity of judgment treaties with a large number of other nations, though not all of them by any means.
> Via extradition treaties? Do these typically extend to cover "crimes"
> involving IP/copyright?
It seems to me here that you are again assuming a criminal prosecution and a natural person for a defendant -- neither of which are necessarily good assumptions. Extradition is unnecessary to enforce a foreign judgment, as I have indicated above.
Additionally, U.S. patent and copyright law do *not* extend to [most] extraterritorial activity. This is a peculiarity of the Lanham Act.
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