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Infringement of intellectual property rights outside New Zealand and the jurisdiction of New Zealand Courts, by Eugene Duhonvnikoff BA/LLB

The basic legal position is this: an act done in a foreign country is a tort and actionable as such in New Zealand, only if it is both:[1]

(a) actionable as a tort according to New Zealand law, or in other words is an act which, if done in New Zealand, would be a tort; and

(b) actionable according to the law of the foreign country where it was done. (2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties. ”

Despite the earlier authorities to the contrary the High Court held in Kabushiki Kaisha Sony Computer Entertainment v van Veen that this rule does apply to breaches of intellectual property rights outside New Zealand.[2]

However there are a few points to note about that decision. Firstly, the defendant in that case was a New Zealand resident and was subject to the jurisdiction of New Zealand Courts’. If he was not then there would have been a jurisdictional issue which had to be resolved through serving the defendant outside New Zealand.

Secondly it is crucial to have evidence that an action is indeed actionable in the foreign country from competent legal advisers.

 

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[1] Chaplin v Boys [1969] 2 All ER 1085.

[2] Kabushiki Kaisha Sony Computer Entertainment v van Veen HC Welligton CIV-2004-485-1520, 14 December 2006.

Reeves/Duhovnikoff & Associates Ltd. 2017

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