2.3 - Principle of territoriality – national rights

Principle of territoriality. The various IP treaties, like the Paris Convention, the Berne Convention and TRIPs, do not create supranational IP-rights. They do harmonize certain areas of national IP law and obligate the treaty countries to have a certain minimum level of protection. However, this does not take away from the fact that IP-rights are national rights and that consequently the proprietor of IP-rights has a bundle of national IP-rights that he can enforce in accordance with the applicable national IP law.

Tod’s v Heyraud. In its judgment in Tod’s v Heyraud (IPPT20050630) the Court of Justice underscored this rule. The Court held (under 32) that it is apparent from article 5(1) of the Berne Convention, that the purpose of that convention is “not to determine the applicable law on the protection of literary and artistic works, but to establish, as a general rule, a system of national treatment of the rights appertaining to such works.”

National law. Historically, the point of departure was that intellectual property law is a matter of national law. The various treaties have harmonized that national law to some extent, but at the end of the day intellectual property law still provides for a bundle of national rights. The content of those different national rights is governed by the applicable national laws and can therefore differ substantially. Whether a particular creation is copyrighted and whether it is infringed is primarily a matter of national law. The different national rights can therefore differ substantially in terms of whether or not a particular object is indeed protected and what that protection might entail under national IP law.IP-rights However, national law is not entirely free to do as it pleases, given that the national law must remain within the bandwidth prescribed by international treaty obligations and European directives.