Re: Advertising violations

On 03/18/99, Vance R. Koven <vrkoven[_at_]world.std.com> wrote:
>
> Perhaps I was not writing clearly, but your response raises an
> interesting question on its own. What I was thinking was that C3PI
> couldn't go to NY and sue someone who was "violating" the California
> statute *in New York* -- California presumably not having legislative
> jurisdiction over acts that take place in New York not intended to have
> effects in California. Where someone acts on a national basis, and
> certain effects of that enter California, the issue is more complicated.
> There may be some interesting constitutional issues here about "dormant
> commerce clause" effects, but let that go.
>
> Your response raises the choice-of-law issue. We're not used to
> thinking about that in copyright!

For anyone interested in a thorough discussion of the potential constitutional problems raised by extraterritorial application of state I.P. laws, I recommend an article by my colleague, Prof. David Welkowitz, titled "Preemption, Extraterritoriality, and the Problem of State Antidilution Laws," 67 Tulane L. Rev. 1 (1992).

The article discusses in particular the nationwide injunction based on state law that was issued in Mead Data Central v. Toyota Motor Sales (the LEXIS/LEXUS case). Prof. Welkowitz' thesis is that there are constitutional limits on the ability of a state to issue nationwide injunctions; that these limits are implicit in several areas of Supreme Court jurisprudence: preemption cases (including Goldstein), personal jurisdiction, dormant commerce clause, and regulatory authority (power to tax) cases; but that the Supreme Court has so far failed to unify the concerns expressed in these cases into a single conherent doctrine.

It is a fascinating and difficult problem that deserves more attention. Ultimately, however, it is a problem that cuts across many substantive areas, so a detailed discussion is probably well beyond the scope of this list.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Fri Mar 19 1999 - 18:50:46 GMT