Comment: Harmonization of Intellectual Property Laws in Federal Systems

2 Colum. J. Eur. L. 511 (1996)

Helmut Kohl. Professor of Law, Johann Wolfgang Goethe-Universität, Frankfurt; Dr. iur. Konstanz.

Professor Ulrich Loewenheim, one of the leading German experts in this field, reports that within our national system there is no conflict between the state and federal interests in regulating intellectual property. The situation is basically the same as the one we discussed in company law last year in Frankfurt. All relevant questions, even those concerning know-how or the right to publicity (which we in Europe would not include under today’s heading and which, as I learned from Professor Ginsburg’s report, might be an area of conflict between the state and the federal legislatures in the United States), are definitely federal issues within the German legal system. The states do not have any legislative power in this area, a situation which, according to our constitutional separation of powers, will remain unchanged for the foreseeable future. In the area of intellectual property, therefore, federalism is relevant when discussing the relationship of the legal system of the European Union to that of the Member States. In order to avoid repetition, I will refrain from asking whether the EU is really a federal system; instead, readers are referred to contributions made in last year’s symposium, and I will simply assume this fact for the purposes of our discussion.

In contrast with the company law discussion last year, we cannot even indulge in the fascinating question of whether the competition between different legislatures and legislative levels could be detrimental to the development of the legal rules –  leading to a race to the bottom –  or whether, on the contrary, they are helpful in promoting a race to the top. The principle of territoriality, which is so central to intellectual property law, prohibits such a race. A Delaware or Luxembourg corporation can as a rule do business all over the world; the owner of a Luxembourg or United States patent or trademark owns a right which ends at the country’s borders.

A symposium commentator must look into nooks and crannies to find a niche for some more or less pertinent additional remarks and observations – which is hard since the reporters have gone into the most important details. Alternatively, in despair he or she might even be tempted to ask whether the topic is relevant at all. I shall do both.