...over intellectual property and copyright infringements? Can the lawsuit be filed in either country or does it have to be filed in the country of the person being sued (Canada in this case)? If it can be filed in the US, what type of court are these cases filed in (federal, state, etc.)? Is there anything else I should know that you can think of?
2007-11-01 02:06:35 · 5 answers · asked by cornellplaya 1 in Politics & Government ➔ Law & Ethics
You mention both intellectual propery and copyright. Copyright is one kind of intellectual property; there are others. This note addresses only copyright issues.
One method would be to sue in the local Canadian court that covers the defendant's location. That's simple to see and even a non-lawyer could come up with that answer :-0
The alternative would be to find a way to hale the offender into a United States court. If the defendant sent the offending material into the US, or placed it into the stream of commerce in such a manner that it was reasonably expected to reach the United States, then you could assert jurisdiction over the defendant in any of the United States where you can show the defendant's publication was expected to be used, or into which he sent the publication. If this is a download, you should download it yourself both the establish the copyright violation and to lay the foundation for a claim of jurisdiction. If it's a mail order publication, again, order a copy, for the same reasons.
Once you have a basis for jurisdiction in the US, be aware that copyright is exclusively federal. It's a federal subject matter question which by law may not be raised as a claim anywhere except federal court.
These cases are not simple or easy, so the "anything else" you should know is, quite simply, that you need the assistance of an intellectual property lawyer.
2007-11-01 03:59:43 · answer #1 · answered by Anonymous · 1⤊ 0⤋
Generally, you would sue where the acts complained of (or most of them, anyway) occurred. It makes sense, because the local courts will have subpoena power over most witnesses, institutions, documents, etc. Also, if the Canadian citizen in question violated your IP rights exclusively in Canada, a US court may not even be able to get *in personam* jurisdiction over him. So overall, I'd say it depends on the particular facts.
If you can and want to bring the lawsuit in the US -- then again, it depends on the facts whether a federal or state court is more appropriate. The case will almost certainly end up in federal court anyway -- since the applicable statutes are all federal, and the defendant, as a foreign citizen, will have the additional basis to remove on the ground of diversity (I'm assuming here the amount in controversy is over $75K -- it usually is in this type of cases).
All these considerations boil down to this: do not even THINK about doing this *pro se* (i.e. without an attorney). A litigant who has himself as a lawyer has a fool for a client -- and this is especially so in cases such as IP. I don't care if you have an IQ of 210, 3 PhD's and the Nobel Prize -- unless you've gone to law school and studied IP, you are not qualified to handle this case. Even among lawyers, this is a specialty -- kind of like brain surgery -- which, in industrial and scientific cases, even requires its own license. So the only advice I can give you is -- see a specialist.
Also, don't take the position that you will "start" the case yourself and then get a lawyer if you get stuck. A lawyer's ability to correct your screw-ups will be very limited -- so start on the right foot.
Good luck.
2007-11-01 09:40:47 · answer #2 · answered by Rеdisca 5 · 1⤊ 0⤋
The US and Canada have both signed trade agreements through the WTO forcing them to observe copyrights of the foreign state. There is a mechanism for infringment claims, and it would be through a Federal court. You need a lawyer competant to bring a civil action before a Federal court.
2007-11-02 16:04:22 · answer #3 · answered by lare 7 · 1⤊ 0⤋
If the violation occurred in Canada, (the actual use of the copyrighted work) then you will be required to file action in Canada. If you file in the U.S. you will be required to show subject matter and personal jurisdiction which, based solely on your post, you cannot.
In canada, copyright suits are filed in the Provencial Court of the Territory in which the offense occurred.
2007-11-01 09:37:51 · answer #4 · answered by hexeliebe 6 · 0⤊ 0⤋
Get a consultation with a lawyer familiar with international law..
2007-11-01 09:10:10 · answer #5 · answered by DrB 7 · 0⤊ 0⤋