"What ramifications are there to changing your web from Passive to interactive so that people can place orders there?"
About the company:
It is an Export Management Company in the USA, who sells bikes worldwide (major clients in India).
Topics that I would like to have on my assignment:
Personal Jurisdiction on internet age
What are the benefits and challenges of changing the website from passive to interactive.
What are ways to avoid legal problems.
Cybersell v. Cybersell, the Ninth Circuit adopted what has since been referred to as the "active/passive" test for determining whether or not a business' website provides a sufficient basis to justify exercising jurisdiction over that company in a particular state.
We are using this book: http://cloudrigs.com/law.pdf - Chapter 96 might be helpful for you to develope the assigment.
Please see the teacher's instructions bellow:
Managerial Roundtable--Facts, Instructions and Group Assignments
In this assignment, you will be assigned to discussion groups and assigned a particular problem that involves what might be called managing within the confines of international law. At the end of the module, we will compare the answers and approaches of the different groups, and you will be encouraged to comment on these answers. Remember, this is a group project and you will be graded on the usefulness and extent of your contributions to the group paper. Individual assignments will not be accepted. Your grade on this portion of the course will not in any way be based on how the ultimate decision of the group is viewed by the class as a whole. Instead, your evaluation will hinge on how well-thought out your argument is, how skillfully you represent the facts that are appropriate, and how persuasively you present your case. All class members must contribute to their portion of the virtual classroom discussion, but all members of the group will not (usually) be given the same grade. Your grade will depend on the degree to which you contribute to the group discussion in a productive, legalistic manner.
To make it more interesting, you will be divided into small groups that will answer the same question but will work only within the small group. In future modules we will be commenting on each other Roundtable reports in the Board of Directors area, but for this first module we will just be submitting a Managerial Roundtable assignment. You should be able to go to your Group's site in this module, and log onto your group's site, but no other.
SMALL GROUP ASSIGNMENTS
For your first managerial roundtable, choose a product and a country to which you wish to export that product. Prepare an export plan that details factors that must be considered and how those factors apply to your particular product and export plans. In addition to addressing factors that you think important in preparing your export plan, you should also address the following specifically legal issues:
--You are running an informational web site for your business. Customers must call your 800 number to place an order. A customer in Alaska is very unhappy with your product. Can they successfully sue in Alaska?You decide you want to be clear in all your future dealings, so you insert a choice of forum clause in all of your contracts with your customers that stipulates arbitration in NY under the rules of the American Arbitration Association. Would this be enforceable? What if the forum clause stated that all disputes would be heard in Tibet?
--What ramifications are there to changing your web site and making it more interactive so that people can place orders there?
--What if your competitor is using your trade secrets and your patents without your permission or payment, would you be interested in arbitrating this dispute? Explain.
Your end product should be a memo of approximately 3-4 screens.
When you are ready to participate in the discussion, go the small group to which you have been assigned.
Here if the part of one of my group members, who already finished her part. This is for you to have an ideia of what path my group has been working on.
I want my essay writen on the same style. It is a 2 page essay.
We hold three design patents that are associated with our IND-M2500: one for the front suspension/shock absorber, one for the hard rubber tire design and one for the combination of the shock and tire assembly.
We have filed all three patents in both China, our country of manufacture, and India, our country of export.
We have discovered that a competitor is infringing on our suspension/shock absorber patent and utilizing a Chinese manufacturer to produce their product which it is exporting to India.
While there are benefits to arbitration, such as reduced costs and legal fees, as well as shorter timeframes for resolving a dispute, the argument could also be made against arbitration for resolving a patent infringement action for a number of reasons, some of which are:
- Since many patent infringement claims do not arise from a contractual relationship between the parties, there is not an agreed-upon clause for arbitration in place to initiate the arbitration proceeding;
- The high value of the patent is a deterrent to companies who would be unable to appeal from an adverse arbitration decision; and
- The possibility of a lack of expertise of the arbitrator in analyzing complicated patent issues is yet another deterrent for companies.
In deciding our course of action for an infringement claim in China, where the suspension/shock absorber is manufactured, arbitration is not an option, so we will have to litigate in the Chinese courts. According to the laws of the People's Republic of China, “issues of patent validity constitute administrative matters that cannot be submitted to arbitration. Thus, while a claim of patent infringement is arbitrable, any defense of patent invalidity would remove the dispute from the jurisdiction of the arbitral tribunal. Because a patent invalidity defense is frequently asserted as a defense to a claim of patent infringement, patent arbitrations are rare in China.” (Smith, et al., 2006, p. 345)
India is not as straight-forward as China in its position of whether arbitration is an option for hearing patent infringement matters, and practitioners have differing views of the arbitrability of patent law issues in India. “One view holds that neither patent infringement issues nor validity issues are arbitrable because courts have exclusive jurisdiction to hear patent cases. Other practitioners argue that while an arbitral award revoking a patent may not be enforceable, courts may be willing to enforce arbitral awards concerning infringement because such awards have only inter-partes effects. Still others contend that the validity of a patent may be arbitrated, though the effects may be limited to the parties to the arbitration.” (Smith, et al., 2006, p. 340).
“Courts in India may implement a wide variety of remedies in suits for patent infringement, including preliminary or permanent injunctions against further infringement, damages or an accounting of profits, and the seizure and destruction of infringing goods or articles whose purpose it is to effect an infringement. Since arbitral tribunals are permitted to issue permanent or preliminary injunctions as well as damages, these remedies should be available to an arbitral tribunal resolving a patent infringement dispute.” (Smith, et al., 2006, p. 345).
Even though it appears that arbitration could be a possible forum in India, for the reasons outlined above with respect to the drawbacks of arbitration for patent matters, I feel we should opt to bring an action in the Indian courts.
Schimmel, D., & Kapoor, I. (february 2009). Resolving International Intellectual Property Disputes in Arbitration. Intellectual Property & Technology Law Journal. Retrieved from m.kelleydrye.com/publications/articles/0463/_res/id=Files/index=0/0463.pdfhttp://
Smith, M. A., Couste, M., Hield, T., Jarvis, R., Kochupillai, M., & Leon, B. (spring 2006). Arbitration of patent infringement and validity. Harvard Journal of Law & Technology, 19(2), 299-356. Retrieved from jolt.law.harvard.edu/articles/pdf/v19/19HarvJLTech299.pdf.
|Due By (Pacific Time)
||06/05/2014 06:00 pm