Business law in Japan-- cases and comments: intellectual property, civil, commercial and international private law: writings in honour of Harald Baum

Compilations of cases with commentary--in Japanese Hanrei Hyakusen--often provide the most practical way to obtain a quick and reliable understanding of a specific field of law, as well as guidance on how best to proceed in specific situations. In this respect, leading cases much more than statutory provisions are essential for understanding the reality of Japanese commercial law. This incomparable book compiles 72 of the most important commercially relevant Japanese court decisions in the fields of civil law, labour law, company law, financial transactions, intellectual property, antitrust, conflict of laws, and arbitration. Each decision is presented in English translation and is accompanied by a practical and explanatory commentary by an expert in the field, be it from academia or private practice. There are 50 commentators in all, brought together here to honour the 60th birthday of Harald Baum, widely regarded as one of the world's foremost scholars on Japanese business law. The cases encompass a wide reach of causes of action in fields such as: ; breach of contract; tort liability; product liability; unjust enrichment; collective bargaining; shareholders' rights; directors' duty of care; political donations; insider trading; patent infringement; parallel imports; trade mark rights; unfair competition; publicity rights; price fixing; arbitration agreements; and recognition of foreign judgements. Whether serving as practical guidance or as a basis for academic research, this compilation will be warmly welcomed by practicing lawyers, teachers and students of Japanese and international law, and all others who need to understand the various fields of Japanese commercial law. Preface Publication Jurisdiction Bibliographic reference Dedication Publication Jurisdiction Bibliographic reference List of Authors and Editors Publication Jurisdiction Bibliographic reference Part I: Civil Law Publication Jurisdiction Bibliographic reference Case No. 1: Civil Law – Contract Law – Nullity of Contracts (Juristic Acts) due to a Violation of Mandatory Public Law Provisions Publication Case No. 1: Civil Law – Contract Law – Nullity of Contracts (Juristic Acts) due to a Violation of Mandatory Public Law Provisions (*) Jurisdiction Court I Headnote(s) Case date II Relevant Provisions Case number Parties III Facts Bibliographic reference IV Findings V Comment 1 Summary and Issues a) Demand of Performance of Indemnification Contract b) Compensation Claimed on the Basis of Reliance on the Conclusive Evaluation 2 Validity of the Indemnification Contract a) General Rules and Theory Concerning Agreed Terms b) Validity of Indemnity Agreements Violating the SEA c) Changes in Public Policy and Timing of the Judgment on Contractual Validity 3 Demand for Performance of the Indemnification Contract a) Timing of Judgment in Contravention of Public Policy b) Prohibition of Demand of Performance Case No. 2: Civil Law – Contract Law – Doctrine of Frustration – Change of Circumstances Publication I Headnote(s) Jurisdiction Court II Relevant Provisions Case date III Facts Case number Bibliographic reference IV Findings V Comment Case No. 3: Civil Law – M&A – Binding Nature of Letter of Intent – Obligation to Negotiate in Good Faith – Confidentiality Clause – Injunctive Relief Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings Reasons V Comment 1 Facts a) The Situation of Financial Institutions in Japan at the End of the Last Millenium b) Sumitomo and UFJ – Part I: Love and Loss c) Sumitomo and UFJ – Part II: Restoration of Hope? d) Sumitomo and UFJ – Part III: What the Courts thought of it e) UFJ and Sumitomo – What happened later? 2 Analysis Case No. 4: Civil Law – Contract Law – Breach of Contract – Damages – Liability for Acts of the Assistant Publication Jurisdiction I Headnote(s) Court II Relevant Provision Case date III Facts Case number Bibliographic reference IV Findings 1 Grounds of Appeal 2 Reasons V Comment 1 Starting Point: Provisions of the Civil Code 2 Turning Point: The 1929 Decisions of the Imperial Court a Decision of 30 March 1929 b Decision of 19 June 1929 c Significance of the Decisions 3 Post-1929 Development and Outlook a The Prevailing Opinion and its Critics b Specific Problems with Regard to Lease Contracts c Outlook Case No. 5: Civil Law – Contract Law – Purchase Contract – Extinctive Prescription for Damage Claims Under the Warranty against Defects Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date III Facts Case number Bibliographic reference IV Findings V Comment 1 Limitation Period for Liability for Damages Based on the Defect Liability 2 Court Decisions until Now 3 Theory 4 Conclusion Case No. 6: Civil Law – Case to Seek Return of Money Equivalent to Unjust Enrichment – Actio de in rem verso Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings V Comment 1 Third-Party Relations in Unjust Enrichment in Japanese Law in General 2 Claim for Return of Money Transferred by Fraud 3 The Situation before This Judgment on Actio De in Rem Verso 4 The Discussion after the 1990 Judgment and Unsettled Problems Case No. 7: Civil Law – Tort Law/Contract Law – Liability for a Breach of Pre-contractual, Contractual and Non-contractual Information Duties – Liability of Experts – Claim for Damages Publication Jurisdiction Court I Headnote(s) Case date Case number II Relevant Provisions Bibliographic reference III Facts IV Findings V Comment 1 Impact of the Supreme Court Decision 2 Previous Legal Concepts Regarding Liability for Breach of Pre-contractual Information Duties a Invalidity of a Contract Due to a Lack of Intent or Due to a Defective Agreement b Invalidity of a Contract in Case of an Induced Mistake in Motive c Voidability of a Contract in Case of Fraudulent Misrepresentation d The Theory of ‘culpa in contrahendo’ (Negligent or Wilful Breach of Pre-contractual Duties) e Liability under Tort Law f Other Legal Mechanisms for Sanctioning a Breach of Pre-contractual Information Duties Provided in Special Laws 3 Critical Assessment and Outlook Case No. 8: Civil Law – Tort Law – Joint Tort Liability Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date Case number III Facts Bibliographic reference IV Findings and Rationale V Comment 1 Liability of Joint Tortfeasors 2 The Greater Context Case No. 9: Civil Law – Tort Law – Product Liability Law – Claim for Damages Publication Civil Law – Tort Law – Product Liability Law – Claim for Damages (*) Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings V Comment 1 Product Liability Legislation and Case Law Developments Case No. 10: Civil Law – Contract Law – Improper Solicitation Transaction – Improperness of Solicitation of Transactions with Elderly People Publication Jurisdiction I Headnotes(s) Court Case date II Relevant Provisions Case number III Facts Bibliographic reference IV Findings V Comment Case No. 11: Civil Law – Consumer Contract Act – Case That Decided whether Gold Futures Prices Are ‘Important Matters’ under the Consumer Contract Act Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Bibliographic reference IV Findings V Comment 1 Significance of the Decision 2 Theories and Case Law Relating to ‘Important Matters’ 3 Analysis of the Supreme Court Decision Case No. 12: Civil Law – Contract Law – Consumer Credit – Documentation Requirements – Return of Unjust Enrichment Publication Jurisdiction I Headnote(s) Court Case date Case number II Relevant Provisions Parties III Facts Bibliographic reference IV Findings V Comment 1 Usurious Lending in Japan and the Supreme Court 2 Statutory Conditions for Reclaiming Excessive Interest in Light of the Judgment 3 Brief Outlook on Economic Implications of the Judgment Case No. 13: Civil Law – State Compensation Law – State Liability – Extinctive Prescription Publication Jurisdiction I Headnote(s) Court Case date Case number II Relevant Provisions Parties Bibliographic reference III Facts IV Findings 1 Liability of the National Government 2 Extinctive Prescription Case No. 14: Civil Law – State Compensation Law – State Liability – Extinctive Prescription Publication Jurisdiction I Headnotes Court Case date Case number Parties II Relevant Provisions Bibliographic reference III Facts IV Findings 1 Liability of the National Government 2 Liability of the Prefectural Government 3 Extinctive Prescription V Comment (Both for Cases 13 and 14) 1 Background a) The State Compensation Law b) Significance Part II: Labour Law Publication Jurisdiction Bibliographic reference Case No. 15: Labour Law – Freedom Related to Hiring – Length of Probation Period Publication Jurisdiction I Headnote(s) Court Case date Case number Bibliographic reference II Relevant Provisions III Facts and Findings 1 Court Trial in First and Second Instance 2 Supreme Court Decision IV Comment Case No. 16: Labor and Employment Law – Duty to Work Overtime – Termination for Cause – Abuse of Right – Section 36 Agreements – Collective Bargaining Agreements – Work Rules Publication Jurisdiction Court I Headnote(s) Case date Case number Parties II Relevant Provisions Bibliographic reference III Facts and Findings 1 Majority Opinion 2 Separate Opinion by Justice Osamu Mimura IV Comment 1 Wrongful Termination and the Doctrine of Abuse of Right 2 Relationship of Collective Bargaining Agreements, Work Rules, and the Rights of the Individual Employee 3 Conclusion Case No. 17: Labor Law – Abuse of Employer's Right to Transfer Employees Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts (1) Parties Bibliographic reference IV Findings On The Statement of Grounds Of Appeal Made by the Defendant's Process-Attorneys Monma Susumu and Kadohara Mitsu 1 On The Election of a Successor for the Defendant's Nagoya Business Shop (13) 2 On Transfer Terms 3 On the Plaintiff's Domestic Situation 4 Formal Adjudication V Comment 1 Employment Contract, Collective Labor Agreement and Rule of Employment 2 Naiji 3 Regular Reshuffle 4 Business Necessity 5 The Transfer Order is Issued from Improper Motives or for Improper Purposes 6 Exceedingly Hard-to-Bear Disadvantages for the Domestic Life Caused by the Transfer Case No. 18: Labor Law – Succession to Labor Contracts upon Company Split – Section 5 Consultations Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provision Case number Bibliographic reference III Facts IV Findings IV Comment 1 Significance of the Case 2 Company Split and Employees' Interests 3 Protection of Employees' Interests and the Labor Contract Succession Act 4 Consequences of a Violation to Hold Section 5 Consultations 5 Conclusion Part III: Corporate Law, Financial Regulation, Insurance Law Publication Jurisdiction Bibliographic reference Case No. 19: Corporate Law – Book-Entry Transfer System for Shares – Minority Shareholders' Appraisal Right – Requirement to Make Individual Shareholder Notice Publication Jurisdiction Court I Headnote(s) Case date Case number II Relevant Provisions Bibliographic reference III Facts IV Findings V Comment (5) Case No. 20: Corporate Law – Duty of Care – Greenmailing – Benefits Granted to Shareholders Publication Jurisdiction I Headnote(s) Court Case date Case number II Relevant Provisions Bibliographic reference III Facts 1 Parties to the Case 2 Negotiation Process between A and Company B 3 A's Extortion of JPY 30 Billion 4 Assumption of Loans and Furnishing of Security 5 Subsequent Developments IV Findings 1 Concerning the Payment of Money Because of A's Extortion a Concerning the Responsibility for the Breach of the Duty of Loyalty and the Duty of Due Care of a Prudent Manager b Concerning the Responsibility for The Violation of Prohibition against Providing a Benefit in Respect of the Exercise of the Shareholder Rights (Section 266(1) Item (ii) Commercial Code) 2 Concerning the Assumption of Loans and Furnishing of Security (the Policy) a Concerning the Responsibility for the Breach of the Duty of Loyalty and the Duty of Due Care of a Prudent Manager b Concerning the Responsibility for the Violation of Prohibition against Offering of Benefit in Respect of the Exercise of the Shareholder Rights V Comment Case No. 21: Corporate Law – Business Judgment Rule – Derivative Action Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date Case number III Facts Bibliographic reference IV Findings (10) V Comment I The Domestic Importance of the Decision 2 The Potential of the Decision to Shape the future of Japanese Corporate Governance 3 The Importance of the Decision to Comparative Corporate Law 4 The Conclusion Case No. 22: Corporate Law – Financial Assistance by Stock Corporation to Associated Corporation – Directors' Duty of Care and Duty of Loyalty Publication Jurisdiction I Headnote(s) Court Case date Case number II Relevant Provisions Bibliographic reference III Facts IV Findings V Comment Case No. 23: Corporate Law – Director's Remuneration – Pension-Type Remuneration after Retirement – Unilateral Cancellation by the Company Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings V Comment 1 Background 2 Practice in the Past 3 Case Law Justifying the Practice 4 Protecting the Director's Contractual Right 5 The Corporate Governance View Introduced 6 Recent Changes in Practice Case No. 24: Corporate Law – Absorption-type Merger – Fairness of Merger Ratio – Action Seeking the Invalidation of a Merger Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings 1 Requirements with Regard to the Balance Sheet to Be Provided for Inspection in Case of a Merger 2 Concerning the Question as to Whether an Inequitable and Unfair Merger Ratio Constitutes a Cause for the Invalidity of the Merger V Comment (3) 1 On the Requirements with Regard to the Balance Sheet to Be Kept for Inspection 2 On the Question as to Whether an Unfair Merger Ratio Can Give Cause for the Invalidation of a Merger a) Unfairness of the Merger Ratio b) Academic Opinions Relating to an Unfair Merger Ratio under the Companies Act c) Shareholders' Right to Appraisal 3 Significantly Unfair Merger Ratio a) Action Revoking the Shareholders' Resolution Approving the Merger b) Directors' Liability c) Unfairness of the Merger Ratio and Directors' Liability to Third Parties d) Injunctions Case No. 25: Corporate Law – Fraudulent Incorporation-type Company Split – Right of Creditors to Seek Avoidance and Request Compensation from the New Company Publication Jurisdiction Court I Headnote(s) Case date II Relevant Provisions Case number III Facts Bibliographic reference IV Findings V Comment 1 Context of the Decision 2 Background for Abusive Company Splits – Shortcomings in the Creditor Protection System under the Companies Act 3 Right to Request Avoidance in Case of a Company Split 4 Prerequisites for a Right to Request Avoidance as Fraudulent Act 5 Legal Effects of Avoidance as Fraudulent Act 6 Legislative Deliberations Case No. 26: Corporate Law – Company Split – Continued Use of Trade Name – Liability of Succeeding Company for Obligations of Splitting Company Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Bibliographic reference IV Findings V Comment 1 Introduction 2 Background of the Problem 3 Purpose of Section 22 Paragraph 1Companies Act a Protection of Reliance on Outward Appearance (9) b Company Assets Serving as Security (10) c Intention of the Assignee (11) d Principle of Cumulative Assumption of Obligations – Construction as Provision for Cases of Parties Agreeing Not to Transfer Obligations (12) e Participation in the Business Activities of the Assignor and Construction in Comparison with (Previous) Section 82 Commercial Code (13) f Construction as a Sanction to Prevent Fraudulent Business Assignments by Assignor and Assignee and to Urge a Reconciliation of Interests between the Parties (14) 4 Provision on the Liability of the Assignee Company Based on Continued Use of the Trade Name a Assignment of Business b Company Split 5 Analogous Application of Section 22 Companies Act to Cases of Company Split 6 Decision Regarding Special Circumstances 7 Other Problems 8 Final Remarks Case No. 27: Corporate Law – Absorption-type Merger, etc. – Appraisal Remedy – Determination of Fair Value Publication Jurisdiction I Headnote(s) Court Case date Case number Parties II Relevant Provisions Bibliographic reference III Facts and Findings IV Comment 1 Provisions of the Commercial Code and the Companies Act on Appraisal 2 Effect of the Absorption-Type Company Split on TBS's Share Value 3 ‘Reference Date’ for Calculating a fair Price 4 Right of Appraisal as a free ‘Put Option’ and Its Abusive Use 5 Discretion of the Court in Setting the Reference Date Case No. 28: Corporate Law – MBO – Squeeze-out – Minority Shareholders' Appraisal Right Publication Jurisdiction I Headnote(s) Court II Relevant Provision Case date III Facts Case number 1 Takeover Bid Bibliographic reference 2 Downward Modification of Y's Performance 3 The Squeeze-Out 4 Petition filed by X and Others 5 Decisions of the first and Second Instances IV Findings Comment I Introduction II How to Carry Out a Squeeze-Out and Whether Shareholders are Entitled to Judicial Remedies III The Appropriateness of Compensation Offered in a Management Buyout 1 Conflicts of Interest 2 Securities Regulations and Judicial Remedies upon the Companies Act 3 Efforts to Establish Best Practices IV Present Situation 1 Measures to Dissolve Conflicts of Interest 2 Appropriateness of the Price Case No. 29: Corporate Law – Takeovers – Issuance of Share Options as Defence Measure – Principal Purpose Rule Publication Jurisdiction Court I Headnote(s) Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings V Comment 1 Introduction 2 Analysis of the Decision a ‘Principal Purpose Rule’ as Framework b How the Courts Find the ‘Principal Purpose’ c ‘Special Circumstances’ that Justify the Defence 3 Developments of Case Law after the Nippon Broadcasting System Case 4 Influence in a Broader Context Case No. 30: Corporate Law – Takeovers – Defensive Measures – Equality of Shareholders Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions III Facts Case number Parties Bibliographic reference IV Findings B Comment Case No. 31: Corporate Law – Constitutional Law – Political Donations by Companies – Legal Capacity of Companies – Purpose of Companies Publication Jurisdiction I Headnote(s) Court Case date Case number II Relevant Provisions Bibliographic reference III Facts IV Findings V Comment 1. Political Donation as a Social Problem 2. Legal Capacity of Companies within the Limits of Its Purpose 3. Enjoyment of Human Rights by Juridical Persons – Freedom to Carry Out Political Activities 4. Relevant Cases after Yahata 5. Respect for the Legislature or Confirmation of Problematic Status'? Case No. 32: Banking Law – Definition of Banking – Meaning of ‘Funds Transfer’ – Legality of Money Transmittance Service on Behalf of Customer Publication Jurisdiction I Headnote(s) Court Case date Case number II Relevant Provisions Bibliographic reference III Facts IV Findings V Comment 1 The Definition of Banking under the Banking Act 2 The Supreme Court s Decision and Its Implications 3 The Identification of a Problem and Legislative Discourses 4 The Regulation of Money Transmittance Services under the Law on Settlement 5 The New Businesses under the Law on Settlement Service Case No. 33: Insider Trading – Decision Regarding Carrying Out a Tender Offer – Decision-Making Organ Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number Bibliographic reference III Facts IV Findings 1 Excerpt from the Supreme Court's Decision Concerning the Element of a ‘Decision-Making Organ’ in Section 2 Excerpt from the Supreme Court's Decision Concerning the Element of a ‘Decision Regarding the Carrying Out of a Tender Offer, Etc.’ in Section 167(2) SEA V Comment 1 Outline on Insider Trading Regulations in Case of a Tender Offer or Equivalent Actions 2 Courts Interpretation of the Term Decision-Making Organ 3 Courts' Interpretation of the Term ‘Decision Regarding Carrying Out a Tender Offer, Etc.’ 4 Significance of the Murakami fund Case for Investors Decisions Case No. 34 Insurance Law – Non-Life Insurance – Accidental Nature of the Insured Event – Burden of Proof Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings V Comment 1 The Burden of Proof of the Accidental Nature of the Insured Event 2 The Development of the Supreme Court s Case Law a) Personal Accident Insurance b) Fire Insurance c) All-Risks Insurance d) Theft Cases 3 Evaluation of the Existing Case Law and Remaining Problems a) Evaluation of the Case Law b) Validity of Case No. 1 c) Validity of Contract Provisions Altering the Allocation of the Burden of Proof Case No. 35: Insurance Law – Life Insurance – Claim for Payment – Exemption due to Intentional Cause of Death Publication Jurisdiction I Headnote(s) (1) Court Case date Case number Parties II Relevant Provisions Bibliographic reference III Facts IV Findings V Comment Part IV: Intellectual Property and Competition Law Publication Jurisdiction Bibliographic reference Case No. 36: Patent Law – Limits of Patent Rights – National and International Exhaustion Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date III Facts Case number Bibliographic reference IV Findings V Comment (2) 1 Introduction 2 Principle of Exhaustion 3 The Japanese Supreme Court's BBS Car Wheels III Decision a) The ‘Reward’ Issue b) The Macroeconomic Aspect of ‘Unhampered Trade’ c) The Microeconomic Aspect of ‘Unhampered Trade’ VI Conclusions Postscript Case No. 37: Intellectual Property – Patent Law – Patent Infringement – Defence of Patent Exhaustion and Exceptions Publication Jurisdiction Court I Headnote(s) Case date Case number Parties II Relevant Provisions Bibliographic reference III Facts IV Findings V Comment Case No. 38: Intellectual Property – Patent Law – Clinical Trials – Research Exception Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date III Facts and Findings Case number Bibliographic reference IV Comment 1 The Decision in the Context of Japanese Law 2 Comparative Aspects Case No. 39: Intellectual Property Law – Patent Law – Requirements for a Patent Term Extension of Pharmaceutical Patents Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties IV Reasons: Bibliographic reference V Comment 1 Content of the Decision 2 The Hitherto Practice of the JPO and the Former Case Law 3 Open Issues 4 Decisions in Similar PTE Cases and Outlook Case No. 40: Intellectual Property – Patent Law – Interpretation of Patent Claims – Doctrine of Equivalents Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date III Facts Parties Bibliographic reference IV Findings V Comment 1 The Basic Principle of the Doctrine of Equivalents 2 The Significance of the Decision in the Ball Spline Case a) The Situations Prior to the Decision b) The Significance of the Ball Spline Decision c) The General Trend in Lower Court Precedents after the Ball Spline Decision 3 The Requirements for Applying the Doctrine of Equivalents Set forth in the Ball Spline Decision a) The First Requirement - Nonessential Part b) The Second Requirement – Replaceability c) The Third Requirement – Ease of Replacement d) The Fourth Requirement - Not Identical to Publicly known Technology or Easily Derivable from Publicly known Technology f) The Fifth Requirement – Special Circumstances such as Conscious Exclusion g) The Burden of Proof for the Application of the Requirements 4 Outlook Case No. 41: Intellectual Property – Patent Law – Employees' Inventions – Company Rules – Reasonable Remuneration Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Bibliographic reference IV Findings V Comment 1 Transfer of Ownership Rights 2 Maximum Amount of Remuneration 3 Concerns of Industry 4 Remuneration to be Calculated under the Law (Section 35 (5) Patent Act) 5 Statute of Limitations 6 Practice of Company Rules in Japan Case No. 42: Intellectual Property – Patent Law – Employees' Inventions – Reasonable Remuneration Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings V Comments 1 Transfer of Ownership of the Rights to the Invention 2 Reasonable Remuneration a) Principles According to Section 35 Patent Act b) Calculation Method ‘Profits of Exclusivity’ c) Summary d) Corrections Made by the Tokyo High Court e) Other Cases f) Criticism and Reform g) Relevance of the Calculation Method ‘Profits of Exclusivity’ after the Amendment of Section 35 Patent Act h) Different Calculation Methods in Company Guidelines Case No. 43: Intellectual Property – Patent Law – Patent Infringement – Counterclaim of Invalidity Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings V Comment 1 Validity and Infringement 2 The Situation Prior to Kilby 3 The Situation after Kilby 4 The Law of Unintended Consequences Case No. 44: Copyright Law – Time- and Space-Shifting Broadcast – Right of Reproduction Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings V Comment Case No. 45: Copyright Law – Re-Broadcasting of TV Programmes – Public Transmission Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Parties Bibliographic reference IV Findings V Comment Case No. 46: Copyright Law – Parodistical use – Right of Quotation – Fair Use Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date III Facts Parties Bibliographic reference IV Findings V Comment Case No. 47: Copyright Law – Cinematographic Works – Distribution Right – Exhaustion Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date III Facts Bibliographic reference IV Findings V Comment Case No. 48: Copyright Law – Future Works – Injunctive Relief – Enforcement of Copyright Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date Parties III Facts and Findings of the Tokyo High Court Bibliographic reference IV Findings of the Supreme Court V Comment VI Statistics a) Number of Intellectual Property Lawsuits Between 1993 and 2010 (First Instance at the District Court Level) b) Requests for Preliminary Measures c) IP Cases on Appeal d) Average Duration of IP Infringement Cases in Months (1st Instance at District Courts) Case No. 49: Trade Marks – Registrability – Secondary Meaning – Three-Dimensional Marks Publication Jurisdiction I Headnote(s) Court II Relevant Provisions III Facts Case date Parties Bibliographic reference IV Findings 2 Trade Mark Act Section 3 (2) Evaluation of other issues V Comment Case No. 50: Trade Mark Law – Similarity – Confusion Publication I Headnote(s) Jurisdiction Court II Relevant Provisions III Facts and Findings Case date Bibliographic reference IV Comment Case No. 51: Trade Marks – Trade Mark Use – Confusion – Comparative Advertising – Well-Known Marks Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Bibliographic reference III Facts and Findings VIII Claim for Damages IV Comment 1 Trade mark Use 2 Comparative Advertising 3 Confusion in the Broad Sense 4 Dilution Case No. 52: Trade Mark Law – Abusive Registration of Well-Known Marks – Foreign Marks Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date Parties III Facts Bibliographic reference IV Findings V Comment 1 Infamous Cases 2 Basic Principles:Use and Confusion 3 Other Options:Better Rights 4 Use Despite Third-Party Registration 5 Bad Faith Case No. 53: Trade Mark Law – Parallel Imports – Identity of Goods – Licensing Agreement – Counterfeit Goods Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date III Facts Parties Bibliographic reference IV Findings V Comment 1 Parallel Import of Trade Marked Goods from Parker to BBS 2 Fred Perry: A case of Identity 3 ‘Converse’ – A Split in Ownership Case No. 54: Protection of Legal Interests Not Explicitly Recognized by Statute – Tort and Intellectual Property Law Publication Jurisdiction I Headnote(s) Court Case date II Facts Bibliographic reference III Findings IV Comment 1 Statutory and Case Law Background 2 The Development of Legal Theory 3 Statutory Reform in 2004 4 Present-Day Methodology and Case Law Case No. 55: Copyright – Works of Applied Art – Law of Torts – Slavish Imitation – Unfair Competition Prevention – Designs Publication Jurisdiction I Headnote(s) Court Case date II Relevant Provisions Case number III Facts Bibliographic reference IV From the Opinion V Comment Case No. 56: Publicity Rights – Personality Rights Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date III Facts And Findings Bibliographic reference 1 Damages Based on the Use of the Names and Photographs 2 Damages Based on an Infringement of the Right of Privacy IV Infringement of the Antimonopoly Act IV Comment 1 Introduction 2 Right to Privacy 3 Right of Publicity 4 Limits of the Publicity Right 5 Subsequent Developments Case No. 57: Patent Law – Licensing Law – Exclusive Registered Licensee – Standing to Sue Publication Jurisdiction I Headnote(s) Court II Relevant Provisions Case date III Facts Case number Parties Bibliographic reference IV Findings V Comment 1 The ‘Licence Triangle’ 2 Three Decisions: One Wrong, One Right, One with Legal Reasons 3 Open Questions 1 Licensor without immediate commercial interest 2 Claim and Calculation of Damage 4 New Legislation Case No. 58: Antitrust Law – Price Fixing – Administrative Guidance – Fair Trade Commission Publication Jurisdiction I Headnote(s) Court Case date Case number Parties Bibliographic reference II Relevant Provisions III Facts IV Findings (19) 1 Relation between Administrative Guidance and Unreasonable Restraint of Trade 2 Criminal Liability of Member Entrepreneurs When Unreasonable Restraint of Trade is Committed by a Trade Association 3 Dual Liability of Employee and Juridical Person 4 Interpretation of Mutually Restrict [...] Business Activities in Section 2 (6) AMA 5 Interpretation of Contrary to the Public Interest in Section 2 (6) AMA 6 Completion Point of Section 89 (1)(I) AMA 7 Illegality of Acts Carried Out Pursuant to Administrative Guidance 8 Lack of Criminal Intent V Comments 1 Historical and Political Context 2 The Oil Cartel Criminal Cases 3 Gyosei Shido and the AMA 4 Public Interest (kyōdō no rieki) 5 Act of a Trade Association (Section 8 AMA) v. Concerted Activity of Its Member Entrepreneurs (Section 3 AMA) 6 Conclusion Case No. 59: Antitrust Law – Concerted Behaviour – Cartels – Patent Pools Publication Jurisdiction I Headnote(s) Organization II Relevant Provisions Case date III Facts Bi Does European Community law represent a new kind of transnational constitutional law? The question is important in the long term because it relates to the future of Europe. More immediately, it concerns the manner in which Community law is interpreted by courts. According to the case law of several national courts, Community law is a special form of international law, ultimately controlled by the Member States. According to the case law of the European Court of Justice, however, it is a form of constitutional law which cannot be controlled by national courts.In the European Court's case law the special nature of Community is described in terms of "autonomy." In this ground-breaking book, a major scholar of European law rigorously demonstrates that this concept arises organically from the origin, system and content of the European treaties; it is in fact an interpretation of Community law according to its own system, independent of national law. On this basis the book clearly explains what the special nature of Community law amounts to and the theoretical and practical consequences that follow from this interpretation. Professor Barents shows why Community law can be seen as a clear example of a new phenomenon: the emergence of non-national or global law, reflecting the reality that in the process of globalisation the nation-state begins to lose its control over the law applicable in its territory.In this stimulating context, many of the difficult issues that often arise in discussions of Community law are treated in depth, including the following:the relationship between national law and international law in general and the relationship between Community law and national law in particular (primacy, direct effect);the process of constitutionalisation of Community law;the "battle" between national constitutional courts and the European Court of Justice;the significance of Community law for the law of the European Union;the "penetration" of Community law into the national legal orders;the role of national courts in the application of Community law;the ultimate source of the powers of the Community;the extension of Community law to the fields of penal law and police cooperation;the significance of the internal market for Community law;the principle of uniform application and interpretation of Community law; andCommunity law as a forerunner of global law.All relevant UK, German, French, Dutch, Spanish, Italian and US literature has been taken into account, as well as the case law of various national constitutional courts. On each issue and topic extensive bibliographies are contained in the footnotes.As the current intergovernmental conference deliberates on a constitution for the European Union, this new and seminal work by Professor Barents is of great significance. It is sure to be avidly consulted by academics and practitioners in Community law, the law of international organisations, international relations, and national constitutional law.The first edition of this book appeared in Dutch in 2000. For this first English edition, the text has been extensively revised to take new developments into account Compilations of cases with commentary – in Japanese Hanrei Hyakusen – often provide the most practical way to obtain a quick and reliable understanding of a specific field of law, as well as guidance on how best to proceed in specific situations. In this respect, leading cases much more than statutory provisions are essential for understanding the reality of Japanese commercial law. This incomparable book compiles 72 of the most important commercially relevant Japanese court decisions in the fields of civil law, labour law, company law, financial transactions, intellectual property, antitrust, conflict of laws, and arbitration. Each decision is presented in English translation and is accompanied by a practical and explanatory commentary by an expert in the field, be it from academia or private practice. There are 50 commentators in all, brought together here to honour the 60th birthday of Harald Baum, widely regarded as one of the world's foremost scholars on Japanese business law. The cases encompass a wide reach of causes of action in fields such as: breach of contract; tort liability; product liability; unjust enrichment; collective bargaining; shareholders'rights; directors'duty of care; political donations; insider trading; patent infringement; parallel imports; trade mark rights; unfair competition; publicity rights; price fixing; arbitration agreements; and recognition of foreign judgements. Whether serving as practical guidance or as a basis for academic research, this compilation will be warmly welcomed by practicing lawyers, teachers and students of Japanese and international law, and all others who need to understand the various fields of Japanese commercial law. Compilations of cases with commentary - in Japanese Hanrei Hyakusen - often provide the most practical way to obtain a quick and reliable understanding of a specific field of law, as well as guidance on how best to proceed inspecific situations. In this respect, leading cases much more than statutory provisions are essential for understanding the reality of Japanese commercial law. This incomparable book compiles 72 of the most important commercially relevant Japanese court decisions in the fields of civil law, labour law, company law, financial transactions, intellectual property, antitrust, conflict of laws, and arbitration. Each decision is presented in English translation and is accompanied by a practical and explanatory commentary by an expert in the field, be it from academia or private practice. There are 50 commentators in all, brought together here to honour the 60th birthday of Harald Baum, widely regarded as one of the world's foremost scholars on Japanese business law. The cases encompass a wide reach of causes of action in fields such as:;breach of contract;tort liability;product liability;unjust enrichment;collective bargaining;shareholders' rights;directors' duty of care;political donations;insider trading;patent infringement;parallel imports;trade mark rights;unfair competition;publicity rights;price fixing;arbitration agreements; andrecognition of foreign judgements. Whether serving as practical guidance or as a basis for academic research, this compilation will be warmly welcomed by practicing lawyers, teachers andstudents of Japanese and international law, and all others who need tounderstand the various fields of Japanese commercial law