infonet-economy

Under the TRIPS Agreement (Art. 41 para. 5) countries are given the option to create specialised
intellectual property (IP) courts. On this basis, countries are free to decide what types of judicial
body or bodies have the jurisdiction to hear IP disputes. Although IP disputes are sometimes
primarily viewed as relating to the enforcement of intellectual property rights against counterfeiters
(specifically in the copyright and trademark areas), the reality and the landscape of IP disputes are
much more complex. The diversity of IP disputes makes it difficult to give a simple and unique answer
to the question of whether it is advantageous or necessary to establish specialised IP courts. This
diversity is also reflected in the way in which national or regional lawmakers and regulators have
structured their IP dispute resolution systems. While recent studies demonstrate that there is no
unique global system or even a prevailing system, a trend towards specialisation or centralisation
of certain types of IP disputes seems perceivable at the global level. However, this trend does not
eliminate the differences which remain, particularly regarding the scope of the jurisdictional power
of specialised IP courts.
There are various advantages and disadvantages in establishing a specialised IP court. Improvements
in the quality of justice, time and cost efficiencies of the proceedings, as well as consistency and
uniformity, are among the advantages that are generally identified. In terms of disadvantages,
reference is generally made to the costs of establishing and of operating a specialised IP court.
In addition, some have expressed concerns that such a court may become subject to political or
economic influences and may develop ‘tunnel vision’ deriving from mainstream legal and societal
movements.
Given the diversity of legal systems and regimes, there is no single method for establishing an
efficient IP court system that promotes innovation and social welfare. Similarly, there is no clear
evidence that specialised IP courts more effectively promote innovation vis-à-vis non-specialised
courts in all circumstances. However, it is clear that a sufficient level of experience and expertise
among the courts and judges can significantly improve the quality of justice in IP disputes.
How advantageous or necessary it is to establish specialised IP courts in a given jurisdiction depends
on a number of factors which are not limited to IP issues. Rather, this determination will take into
account more general factors, including economics, the legal system and societal characteristics.
Thus, the creation of specialised IP courts cannot be recommended in all circumstances. A decision
relating to the establishment of specialised IP courts must consequently be made on the basis of
a fully informed, transparent and unbiased analysis of the situation which prevails in the relevant
territory.