345Online Intellectual Property Disputes and Private International Law: A Swedish and Australian perspective

Prof. Dan Svantesson

Faculty of Law, Bond University, Australia

Introduction

I was greatly honoured to again have the pleasure of presenting at a Lex&Forum webinar; this time on the topic of International Dimension of Intellectual Property Disputes. And again, the organisation of the webinar (led by Prof. Paris Arvanitakis) was exceptional, and I enjoyed being joined by colleagues (Prof. Marketa Trimble, Prof. Gerald Spindler, and Dr. Ioannis Revolidis) I greatly admire. While I learnt a lot from the other speakers at this event –held on May 4th, 2023, and expertly chaired by Prof. Lia Athanasiou– this article aims to summarise what I sought to convey on that occasion.

As indicated by the title, my focus then was placed on the exciting cross-section of intellectual property, Cyberspace, and private international law. As also indicated in the title, I approached this topic from the perspective of Swedish and Australian law. Those are also my focal points in this article. However, given the format, it goes without saying that I was confined to merely highlighting a few interesting examples rather than provide a comprehensive overview.

On the lines below, I first say a few words about the type of legal issues that arise in the context of the cross-section of intellectual property, Cyberspace, and private international law. I then discuss some selected examples from the legal systems of Sweden and Australia, before reaching some brief conclusions.

However, to set the scene, and given that the event in question was held on what has become known as “Star Wars Day” (May the 4th), I want to start with a perhaps slightly less serious angle of the topic at hand. The highly successful Star Wars franchise is a good illustration of just how much emphasis is placed on intellectual property in modern society. Indeed, a key reason that these famous movies have become so successful is partly attributed to the way that the intellectual property matters have been handled along the way and the influence intellectual property has in relation to this Star Wars universe[1]. Out of curiosity, I did a data search combining 346“Star Wars” and “intellectual property in private international law”. It generated no less than 357.000 results. In fact, there are even some commentators who have sought to analyse the whole Star Wars saga from an intellectual property perspective[2].

The challenge

When examining what are the challenges that arise in situations involving the cross-section of intellectual property, Cyberspace, and private international law, we may start with a quote from the Federal Court of Australia, from now over 10 years ago: “The challenge for intellectual property law presented by the irrelevance of physical geography in Cyberspace is to reconcile that irrelevance with the limits of jurisdictional competence in the protection under domestic law of local intellectual property rights”[3].

I suppose this is really just a rather complicated way of pointing to what is well known; namely, the clash between a lack of territoriality of Cyberspace on the one hand, and the fact that law typically is structured in, or at least viewed from, a territorial perspective. Arguably, intellectual property is an area where we, more than in other areas, are taking a sort of territorial focus even though territoriality might be losing its grip there, too, to some degree.

Elsewhere[4], I have argued that there are four other issues that also arise when we get into this sort of combination of private international law and the Internet. The first is that there is an imbalance between the ease and cost effectiveness of cross-border contacts and the difficulty and expense of solving cross-border disputes. Even though we have seen some progress in various forms of ADR, this remains one of the fundamental challenges for us. It is now easy to get into contact with people from other countries via the Internet, but it is still very expensive to deal with cross-border disputes. Regrettably, I doubt that we are going to have any solutions to that, at least not short-term ones.

The second point is that certain rules of private international law have lost their logical appeal when applied in the Internet context. For example, it is doubtful that rules attaching significance to the location of contract formation provide real value in the e-commerce setting where contracts typically are formed on a distance and any talk of a place of formation need to seek refuge in legal fictions. If the challenge discussed above was that it is hard to find solutions to the issue of the difficulty and expense of solving cross-border disputes, I think there is a different type of obstacle 347to addressing this second point. Perhaps for good reasons, lawyers in general –and lawyers in private international law in particular– are quite conservative. For that reason, we might not see reform as quickly as we need to. This is something to work on.

The third point is that those active on the Internet may lack sufficient notice as to which laws govern their conduct and in which forums they potentially can be sued. Elsewhere[5], I have argued in favour of AI-based structures aimed at reconciling and balancing the different laws from different jurisdictions that claim to govern our online activities. This, admittedly, remains a controversial and challenging proposition and may never become a reality. But until it does, I cannot see any obvious attractive solutions to the significant issue of foreseeability and predictability.

The last of the four issues I wanted to highlight that arise in the cross-section of private international law and the Internet is the fact that the existing gap between reasonable grounds for jurisdictional claims and reasonable grounds for recognition and enforcement has been severely widened. Countries are happy to claim jurisdiction in a broad way, but not equally eager to recognise foreign jurisdictional claims to the same extent. That is, in a way, understandable, but it remains an issue.

Selected observations regarding Swedish law

Sweden, being a civil law country, shares a lot of features and characteristics with other civil countries when it comes to jurisdiction[6]. While Swedish law is often (rightfully) seen as a bit different compared to the continental civil law systems, we can leave that aside for now. What is interesting is that the legislation in Sweden does not specifically contain rules on how to deal with international disputes. We rather rely on Rättegångsbalken[7], namely the same set of rules that regulates jurisdiction for domestic disputes, also in case of international disputes.

Rättegångsbalken 10:8 is the provision that is most often applied as a jurisdictional ground for claims in the area of IP rights: “Actions due to a damaging act may be brought before the court in the place where the act was committed or the damage occurred. If the act was committed or the damage occurred in places under different courts, the action may be brought before each of them”. This provision probably looks familiar to anyone acquainted with EU law, and I should stress that even 348this domestic rule is interpreted in the light of EU law. Thus, the similarity with the Brussels Ia Regulation is both in wording and in application.

My very limited ambition here is to introduce what may be said to be the most famous of the Swedish cases that relate to the cross-section of private international law, intellectual property, and the Internet. In the Tylden case[8], a Norwegian company put on its website in Norway a photograph, the copyright of which belonged to a Swedish company based in Stockholm. The main matter was whether the Swedish rightsholder could take action before the courts in Stockholm against the Norwegian company for the infringement.

The case was decided at the time when the Lugano Convention of 1988 was the relevant law, but the case was approached in the light of the Brussels I Regulation. This was a point raised by the Supreme Court of Sweden when the case was introduced before it. The lower courts concluded that Sweden did not have jurisdiction under what was article 5(3) of the Lugano Convention. But once the case reached the Swedish Supreme Court, a favourable ruling was made for the Swedish rightsholder. And the ruling was strongly influenced by the eDate case, which we all know is related to the protection of personality rights.

The Swedish Supreme Court divided the matter before it into two parts: the first was damages for economic rights, and the second was damages for moral rights. In relation to damages for economic rights, the Court said that, as far as economic damage is concerned, the copyright holder can claim compensation only for the damage that occurred in Sweden, following the decision of the ECJ in the Bier case:

“As far as economic damage is concerned, ME claims compensation only for such damage that he claims has occurred in Sweden. According to the judgment of the European Court of Justice in the case Bier v. Mines de potasse d’Alsace, the court in the place where the damage has occurred has jurisdiction […]. Already according to that principle, there is therefore Swedish jurisdiction also with regard to ME’s claim for compensation for financial damage”. (my translation of § 29)

That part is probably unsurprising. What is more surprising is perhaps the way the Court dealt with moral rights. As regards moral rights, the Court drew from the ECJ’s eDate case and ruled that compensation for damages to moral rights aims to protect artists against violations of their reputation and, thus, are akin to actions for violation of personality rights. The considerations that formed the basis of the ECJ’s decision in eDate were deemed applicable in the Tylden case as well:

“Compensation for damage to moral rights aims e.g., to protect artists […] against violations of their reputation and are thus of a kind akin to the compensation for violations of personality rights that the ECJ addressed in its decision in the joined cases of eDate Advertising and Martinez. The considerations that formed the basis of the Court’s decision in that case […] apply in this case as well. 349There is therefore reason to apply the principle from that judgment to the question of jurisdiction as far as ME’s claim for compensation for damage to moral rights is concerned”. (my translation of § 29)

In that sense, we may observe that a copyright-based claim can be split into two parts with the moral rights aspect being treated as a claim for violations of personality rights for jurisdictional purposes. Of course, this is not something that we have seen elsewhere in the courts in Europe, but this case, even though it is now more than 10 years old, remains good law in Sweden[9] and hopefully we will get to see how other courts will deal with this sort of matter. Personally, I can see the logic of the reasoning here but, at the same time, I can also see some problems stemming from this approach.

The Tylden case also brings attention to one of my “pet concerns” in EU private international law: that is, under the eDate approach, and similar approaches in this context, what does it mean to award jurisdiction for “all the damages” when the plaintiff sues at their centre of interests? I already discussed this issue in my 2022 contribution to Lex&Forum[10], but I want to expand on that discussion somewhat here.

The basic premise of the eDate approach is that if the defendant sues at the place of their centre of interests, they can claim “all the damages” suffered, while if they opt to sue at any other jurisdictional venues available under art. 7(2) of the Brussels Ia Regulation, they can only claim the damages suffered within each individual jurisdiction. As a result, the question that arises is what does it mean to claim “all the damages”.

The debate, to be more precise, is whether “all the damages” refers to EU-wide damage or it refers to worldwide damage. When I discuss this topic with European colleagues, they generally do not seem very concerned or even interested in that question but to me –perhaps due to the fact that I in a sense view EU law from the “outside”– that is quite an important one.

If we look at the Shevill case, it only relates to the circulation of infringing material within Member States. Shevill, therefore, did not raise this prospect on whether “all the damages” could possibly relate to worldwide jurisdiction. And eDate did not change that. There’s no express claim or even an implied claim in eDate that would justify a departure from the findings of Shevill when it comes to the territorial outreach of damage claims.

Things get more complicated, however, when it comes to the Bolagsupplysningen case where Advocate General Bobek stated that: “There is just one website. It simply 350cannot be rectified or deleted only ‘in proportion’ to the harm suffered in a given territory”[11].

Thus, Bobek claims that there is just one website, and it simply cannot be rectified or deleted only in proportion to the harms suffered in a given territory. Regrettably, the Court largely adopted this misguided reasoning and talked about an application for rectification of the content or removal of it as a single and indivisible application: “an application for the rectification of the former and the removal of the latter is a single and indivisible application”[12].

Put simply, this line of reasoning seems to imply that since we can only delete globally or not at all, then such actions are relevant worldwide. But, as I and others (including Prof. Trimble – one of my fellow panellists at the webinar) have been writing about for many, at least 20, years now, there are geo-location technologies that allow us to have different content based on geography. Thus, the whole reasoning here does not quite hold up, and if Bolagsupplysningen was intended to change the meaning of “all the damage” from EU-wide to worldwide, I think that is a big step and the Court should have made that expressly clear.

When it comes to personality rights, it is also true that there is no harmonization on the substance and, even though we have greater harmonization when it comes to intellectual property law, the latter is not by any means uniform throughout the world. In that sense, a European decision might not at all be in line with attitudes in other parts of the world.

Furthermore on this point, it may be noted that the very reference to a “Mosaic principle”, by its very nature, implies that when we talk about “all the damages” we mean “all the damages” within the EU, but not worldwide: if all the pieces of the Mosaic lie within the individual countries of Europe, then when we put them together all those pieces form Europe; they do not form the whole world and therefore, in my view, “all the damages” cannot be viewed as referring to worldwide. Further support for this argument can be found by the attitude of the EU itself when it interacts with other jurisdictions. For example, in an amicus brief of the European commission for the controversial Microsoft warrant case it was noted that:

“Any domestic law that creates cross-border obligations –whether enacted by the United States, the European Union, or another state– should be applied and interpreted in a manner that is mindful of the restrictions of international law and considerations of international comity. The European Union’s foundational treaties and case law enshrine the principles of ‘mutual regard to the spheres of jurisdiction’ of sovereign states and of the need to interpret and apply EU legislation in a manner that is consistent with international law”[13].

351Finally, I will also wish to emphasise the fact that Advocate General Hogan in the recent GTflix case clearly seems to be taking review that “all the damages”, an expression which is often also described as “full jurisdiction”, refers to EU-wide only:

“In addition, defendants may take certain actions to protect themselves against this type of risk. For example, depending on the context, they can bring a negative declaratory action before a court with full jurisdiction. (57) Since that jurisdiction will be competent to rule on the damage on the whole territory of the EU, the application of the rules of mutual recognition of decisions, provided for by Regulation No 1215/2012, will have the effect of depriving any other courts of their jurisdiction to rule on the damage occurring in the territory of only a single Member State”[14]. (emphasis added)

With these thoughts I would like to conclude that particular aspect of our discussion.

Selected observations regarding Australian law

Australia is a common-law country and shares many features with other common-law countries. Yet, it may be said that Australia has taken a rather aggressive approach to extraterritorial claims towards the Internet in many ways. This is exemplified in the Copyright Act section 115A that gives right’s owners the power to apply before the Federal Court of Australia for an injunction that requires a carriage service provider to take such steps as the Court considers reasonable in order to disable access to an online location outside Australia:

“(1) The owner of a copyright may apply to the Federal Court of Australia to grant an injunction that requires a carriage service provider to take such steps as the Court considers reasonable to disable access to an online location outside Australia that:

(a) infringes, or facilitates an infringement, of the copyright; and

(b) has the primary purpose or the primary effect of infringing, or facilitating an infringement, of copyright (whether or not in Australia)”.

The X v. Twitter case is a good illustration of just how aggressive the extraterritorial reach of the Australian courts has been. There, a person whose identity was not disclosed (and whose nationality was not discussed) was awarded an order against Twitter (a foreign company) requiring Twitter to prevent another person (whose nationality was not discussed) from using Twitter in the future anywhere in the world. The Court’s main justification for claiming jurisdiction was that:

“Among other things, the injunction sought to compel or restrain the performance of certain conduct by the defendants everywhere in the world. That necessarily includes Australia”. (§ 20)

352As I already alluded to in my 2022 contribution to Lex&Forum[15], there is a trend internationally, that I think is becoming increasingly normalised, that the “scope of jurisdiction”[16] is territorially unlimited. As far as the topic of intellectual property is concerned, we can, for example, see this trend represented in the relatively recent ILA guidelines on intellectual property[17]:

Guideline 3. Defendant’s Forum

“Unless otherwise provided for in these Guidelines, the defendant should be subject to the jurisdiction of the courts of the State in which he or she is habitually resident. The courts’ jurisdiction shall be territorially unlimited”. (emphasis added)

Guideline 5. Infringements

“In a case of an alleged infringement, a person may be sued:

(a) In the courts of the States where the alleged infringer has acted to initiate or further the alleged infringement; the courts’ jurisdiction to award remedies arising from those acts shall be territorially unlimited”. (emphasis added)

There may be some hidden dangers in this. For example, with the uptake in data localization laws, companies may be forced to have servers in a large number of countries. It does not make sense to let that mean that they can also be sued in all those countries with the effect of the courts of all those countries having territorially unlimited jurisdiction. Similarly, a company may choose to make use of servers in a particular country e.g., for environmental reasons, without otherwise having any links to that country. Must that give rise to courts of that country to have territorially unlimited jurisdiction? Against this background, the use of a server in a given State should not (on its own) mean that the alleged infringer has acted to initiate or further the alleged infringement in that State.

Global orders are the most effective in whatever we are dealing with, but we need to be careful. Global orders are justified in some, but not all cases, and global order should not be the default position. I think this applies in intellectual property as well as it does elsewhere.

353Let me know return specifically to Australian law. The rules of jurisdiction in Australia can be broken down into three categories as in many common-law countries: jurisdiction can be based on presence, submission or it can be allowed under the relevant Court law or rules. Thus, each court has its own court rules outlining when it would claim jurisdiction and that complicates the system quite a bit. It is only recently that we have seen a greater degree of harmonization between the courts. Of particular relevance for our topic, there has been reform with the Federal Court Rules 2011 (Cth)[18] coming into force just earlier this year (2023), so the Federal Court Rules were amended with the aim of greater harmonization. This is interesting because, in the end, it also means that the Federal Court Rules arguably are more accommodating. For example, under the old rules you could instigate an action based on a tort committed in Australia, while the new rules watered down the territorial connection, since you can now instigate tort proceedings if the act was done wholly or partly in Australia.

I now want to turn to two Australian cases, one older famous case and one more recent but not so famous case. The famous case is the Ward Group case from 2005[19]. It resulted from a company in the UK having trademark rights in a hair anti-greying product, while another company in Australia had trademark rights in that same product in 70 countries around the world, including Australia. The UK company sold the product to distributors who then sold it to other parties who sold it on the Internet. The Australian rightsholder was concerned that when these products were sold on the Internet, that would violate the trademark right in Australia and argued also that it was a matter of “passing off”[20], which is a specific action that is often pleaded together with trademark actions like this in Australia. One reason this case is so important is that it dealt at quite an early stage with the issue of targeting or directing of activities that is now a standard mechanism in EU law.

The only evidence of sales of the UK Restoria products in Australia was the evidence adduced by the Ward Group of purchases of those products by its solicitors acting on its behalf (“the trap purchases”). In each instance, the website was uploaded by one of the website proprietors in the UK and the purchaser downloaded the website in Australia and placed an order for the UK Restoria products in the manner described above. One site contained “Select Shipping Destination” and provided a “drop down” country box containing a list of various countries, including 354Australia, for the consumer to select as a shipping destination. On one site the price was listed in British pounds, Euros, US dollars and Australian dollars.

As to passing off, the Court concluded that:

“If Australian consumers had been targeted by the website proprietors for the marketing and sale of the UK Restoria products under the Restoria name, the fact that the representation, when made in the United Kingdom, was accurate would probably not save it from becoming a misrepresentation when the representation was made and received in Australia. The reason for that conclusion is that the cases to which I later refer […] treat such a representation as being made to and received by consumers in Australia, rather than a representation made to the world at large”[21].

In relation to trademark infringements, the Court first noted that:

“The website proprietors’ advertising on the Internet of products for sale was a marketing of those products to the world at large and I am not satisfied that it was a marketing that was specifically targeted or directed at, or was specifically intended to be acted upon by, consumers in Australia. […] Rather, the circumstances indicate no more than that the website proprietors expected that there may be potential consumers in Australia, in the same way as they expected that there may be potential customers elsewhere in the world, that might be interested in purchasing any of the products advertised on their websites”[22].

In the light of that, it added:

“On the facts of the present case, the first occasion on which the website proprietors would be considered to have intended to use and used the Restoria mark in Australia was when they accepted the orders placed by the trap purchasers in respect of the UK Restoria products in terms that used the Restoria mark. The reason I have arrived at that conclusion is that prior to that time the trap purchasers were downloading a representation made on the Internet to the world at large, and not a representation intended to be made to, or directed or targeted at, them in Australia. Thus, I do not accept the contention made by the Ward Group that the use of the Restoria mark by the website proprietors on the Internet, without more, was a use of the mark by them in Australia”[23]. (my emphasis)

Moving to the more recent case of Sapphire Group, this case related to a trademark for candles in a glass[24]. Sapphire had a trademark in Australia and Mr. Staples, a former employee of Sapphire, started his own company and registered the same trademark in China. There were arguments that he had done so just to prevent Sapphire 355from marketing in the Chinese market, which he denied. In a complex set of proceedings, there was parallel litigation taking place in Hong Kong SAR, in China, and in Australia.

Sapphire took action against Luxotico and Mr Staples in the courts in New South Wales. The action, there, was not specifically an intellectual property action, but had great impact on the intellectual property. Sapphire presented their claim as a tortious one (intentional infliction of economic harm by unlawful means). In a way, Sapphire was arguing that registering the trademark in question in China was an unlawful means of intentionally causing economic harm to the Sapphire Group. Based on that, they sought an order from the Australian Court in New South Wales requiring, amongst other things, that the defendants be restrained from exploiting the Chinese trademarks and take steps to remove them or assign them to the plaintiff.

This is an interesting approach in that it amounts to an attempt to use Australian law to indirectly affect the trademarked rights under the Chinese system. The question, in terms of jurisdiction, was whether the tort was committed, at least partially, in Australia. The tortious action would have been the registration and while it was unclear if Mr Staples had given instructions from Australia to apply for the trademark. The Court asserted that damages have definitely been sustained in Australia. In fact, it pointed out earlier decisions showing that any time an Australian company suffers economic loss, it does so in Australia and therefore damages are suffered there.

Against this background, the threshold for claiming jurisdiction is very low in a matter like this. The very serious consequences that could have flowed from this case were avoided because, although the Australian Court claimed jurisdiction and did not consider itself to be a clearly inappropriate forum, it went on to state:

“I consider that these proceedings should be temporarily stayed pending completion of the trademark litigation in China to the conclusion of the current appeal process and any re-trial by the Supreme People’s Court, leading to a final determination by the CNIPA in respect of Luxotico’ s trademark registrations”. (§ 117)

In this way, the Australian court gave preference to China in sorting out whether or not the registration had been unlawful in the first place. I can certainly see the merits of this. At the same time, I wonder if there are systems in the world in relation to which relying on the foreign judgments to such a degree might not be realistic.

In any case, I think that this example highlights something that links us to a bigger picture. Countries are more and more competitive, and the international arena is more and more competitive. For example, in 2021, China introduced its rules on contracting “unjustified” extraterritorial application for a legislation and other measures, with partly the aim being to counteract the impact on China caused by what they call unjustified extraterritorial application of foreign legislation[25]. This sort 356of “extraterritoriality shields” I think is going to become more common. I predict that we are going to see a hardening climate and I think that we will have to take better account of this and also of how laws are structured in the cross-section of private international law and intellectual property.

Concluding remarks

The above has of course merely “scratched the surface” of the complexities we find in the cross-section of intellectual property, Cyberspace, and private international law. And it has given partial –and perhaps rather blurry– snapshots of the legal situations in Sweden and Australia respectively, rather than any sort of comprehensive multidimensional landscape picture. Hopefully, however, I have managed to highlight some key issues in this area that are in need of –and indeed deserving of– further research.

[1] See e.g.: Lucasfilm Limited and others (Appellants) v. Ainsworth and another (Respondents) [2011] UKSC 37.

[2] See e.g.: Ben Wodecki, The Force Is Strong With This One: IP Laws in Star Wars (March 4, 2020) [https://www.linkedin.com/pulse/force-strong-one-ip-laws-star-wars-ben-wodecki/].

[3] International Hair Cosmetics Group Pty Ltd v. International Hair Cosmetics Limited [2011] FCA 339, § 59.

[4] Dan Svantesson, Private International Law and the Internet4 (Kluwer Law International, 2021), 106.

[5] Dan Svantesson, A Vision for the Future of Private International Law and the Internet – Can Artificial Intelligence Succeed Where Humans Have Failed?, Harvard International Law Journal Online (4 August, 2019) [https://harvardilj.org/2019/08/a-vision-for-the-future-of-private-international-law-and-the-internet-can-artificial-intelligence-succeed-where-humans-have-failed/].

[6] For more details on Swedish law in this area, see various works by Ulf Maunsbach, Michael Bogdan, and Lydia Lundstedt.

[7] Rättegångsbalk (1942:740).

[8] NJA 2012 s 483.

[9] Although, as pointed out by one participant at the webinar, it could be argued that the approach described is obiter.

[10] Dan Svantesson, Private International Law and the Internet, Lex&Forum 2/2022. 299-310, 305-306.

[11] Opinion of AG Bobek delivered on 13 July 2017 in Case C-194/16, Bolagsupplysningen OÜ Ingrid Ilsjan v. Svensk Handel AB.

[12] Case C-194/16, Bolagsupplysningen OÜ Ingrid Ilsjan v. Svensk Handel AB, § 48.

[13] Amicus brief, 5, [https://www.supremecourt.gov/DocketPDF/17/17-2/23655/20171213123137791_17-2%20ac%20European%20Commission%20for%20filing.pdf].

[14] Opinion of AG Hogan on Gtflix TV, C-251/20, ECLI:EU:C:2021:745, § 64.

[15] Dan Svantesson, Private International Law and the Internet, Lex&Forum 2/2022. 299-310, 307-308.

[16] See e.g.: Dan Svantesson, “Scope of Jurisdiction” – A Key Battleground for Private International Law Applied to the Internet, Yearbook of Private International Law, Volume 22 (2020/2021). 245-274· Dan Svantesson, Scope of jurisdiction online and the importance of messaging – Lessons from Australia and the EU, Computer Law & Security Review 38 (2020), Article 105428· and Dan Svantesson, Private International Law and the Internet4 (Kluwer Law International, 2021), 25-30, 387-401, and 564-573.

[17] ILA Committee on Intellectual Property and Private International Law, Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”), Journal of Intellectual Property, Information Technology and E-Commerce Law 2021, 12(1), [https://www.jipitec.eu/issues/jipitec-12-1-2021/5252].

[18] The Court shares first instance jurisdiction with the Supreme Courts of the States and territories in the complex area of intellectual property (copyright, patents, trademarks, designs and circuit layouts). All appeals in these cases, including appeals from the Supreme Courts, are to a full Federal Court.

[19] Ward Group Pty Ltd v. Brodie & Stone Plc [2005] FCA 471.

[20] Regarding passing off, see further e.g.: Dan Svantesson, Svantesson on the Law of Obligations4, Centre for Professional Legal Education (2022), [https://oercollective.caul.edu.au/svantesson-law-obligations/].

[21] Ward Group Pty Ltd v. Brodie & Stone Plc [2005] FCA 471, § 32.

[22] Ward Group Pty Ltd v. Brodie & Stone Plc [2005] FCA 471, § 37.

[23] Ward Group Pty Ltd v. Brodie & Stone Plc [2005] FCA 471, § 41.

[24] Sapphire Group Pty Ltd v. Luxotico HK Ltd [2021] NSWSC 589.

[25] MOFCOM Order No 1 of 2021 on Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures.