Chapter XII:

TRANSBOUNDARY POLLUTION

What is trans-boundary pollution?

Trans-boundary pollution is one not contained by a single nation-state, but
rather travels across national borders at varying states.
(www.encyclopedia.com)

When does a Pollution problem become transboundary?

Pollution becomes trans-boundary when it cuts across national territories

and its ill effects and negative impacts are not merely localized in one
place or within the borders of the source-state. It may originate in one
place and travels to the territorial boundaries of another state/s.

More often than not, the source-state may not feel the harmful effects of
the pollution it caused since it can easily migrate from its territory to
another.

What are the requisites to determine the existence of trans-boundary

pollution?
1) The harm must result from human activity.
The pollution must be caused directly or indirectly by human conduct of
the inhabitants of the source state. This means that the damaging
effects caused by environmental factors do not fall within the scope of
the obligation unless they have some “reasonable proximate causal
relation to human conduct.”

2) The harm must be a physical consequence of the human activity.

The human activity must cause directly or indirectly the harm to the
environment. Harm caused to natural resources by industrial and
agricultural activities are thus typically encompassed by the obligation,
while for example economic consequences caused by the increase in
commodity prices due to environmental interferences are excluded.

3) There must be a physical effect crossing national boundaries.

International law already applies when the pollution crosses from one
state to another. The physical effect not only refers to one state, but
may include several other national boundaries. The instances typical of
 this occurrence is through waterways, where polluted water from one
state crosses to one or more states through its rivers or bodies of
waters.

4) The harm in question must exceed a certain level of severity that

calls for legal action.
In order to determine whether the discharge of pollutants may be
considered as constituting trans-boundary pollution, it must be
considered to be significant or substantial.
Treaties and conventions on environmental protection primarily
establish the acceptable standards of discharge of pollutants. Pollution
that exceeds these standards can be a cause of legal action.
Paper: PluriCourts Research Paper No. 14-17, August 25, 2014 Website:
https://poseidon01.ssrn.com/

What is haze?

It is a type of pollution which cuts across territories such as forest fires

or from polluting factories in a particular area towards neighboring
states/s. It may serve as a private cause of action for affected people
and entities. Hence, there is a need to ascertain and determine the
applicable law. This is where conflict of laws arises.

Ascertaining applicable law:

Source-state
It is the law from the state of the source of pollution. Adjoining and
neighboring countries: law of a state where the pollution passes
through
Affected state: law of the state where the impacts are felt; or
International treatises or conventions specifically governing haze
problem, providing remedies for affected parties or a foundation from
which the pollution may be abated for the well-being of Member-states
and their people.
Approaches to Trans-boundary Pollution

a. Governmental interest analysis

This approach indulges the courts to consider governmental

interests when two or more states have conflicting laws and
 interests. Domestic courts compare the laws and interests of two
states to determine if there is a real conflict. If there is conflict of
law, apply the law of the state whose interest is more impaired It
is important to consider the interest of other states since
commercial transactions involve people located in several
jurisdictions, which may have conflicting interests in a transaction,
where such interest may have been a motivating factor in the
agreement of the parties. In torts, a state may have an interest in
the dispute due to its closer connection to the parties. Its laws
shall be favored over those of another state.

Steps:

1) Court determination whether the relevant law of the affected

jurisdictions with regard to the issue in question is the same
or different;
2) If there is a difference, the court examines each
jurisdiction’s interest in the application of its own law to
determine whether a true conflict exists;
3) If there is a true conflict, court shall evaluate and compare
the nature and strengths of the interest of each jurisdiction
to determine which interest would be more impaired if its
policy were subordinated to the policy of the other state.
b. Lex loci delicti
 Application of the law of the place where the damage is suffered
or inflicted.
 Looks to the domestic law of a state applied to polluting activities
whose sources are foreign.
 So long as the effects are felt locally, domestic law may be
applied to govern the act complained of, notwithstanding that the
source came from outside the country.

What are the tort liability theories regarding conflict of laws on trans-
boundary pollution?
1) Tort Liability should be governed by the Law of the Forum (Lex
Fori)
 Principal arguments in favor of this theory:
a) Liability for torts in closely related to liability for crime.
Hence, foreign law is applicable.
b) Tort liability is closely connected to the fundamental public
policy of the forum. Thus, it must be governed by the law
where the tortious act was committed.
 The limitations of this theory:
a) The law of torts is specifically distinguished from criminal
law. Not all torts are punishable under criminal laws.
 b) It creates problems on court jurisdiction because the
claimant often have choices of forum where to file a case.
The theory actually encourages forum shopping, which is
detrimental to fairness because one of the parties of the
cases may choose a forum which is favorable to him.

2) Tort Liability should be governed by the Law of the Place of the

Tort (Lex Loci Delicti)
 Proponents of this theory contend that it should be applied
because:
a) The law of the place where the tortious act was committed
should apply because of interest of the authorities in seeing
to it that torts are prevented and the wrongdoers are
penalized.
b) There exist legitimate expectations of the parties, especially
the injured party, that liability arising from the tort should be
compensated.
 Opponents of this theory raise up the following issues:
a) Where there is an agreement between the parties, torts
may occur unexpectedly in a place other than the place of
contracting.
b) There is ambiguity regarding the place of the tort insofar as
the effects of the act is concerned, such that a defendant’s
acts may be committed in one state while its deleterious
effects may be felt in another state.
c) The strict application of this theory may be
disadvantageous to one of the parties to the case.

3) Tort Liability should be governed by the proper Law of the Tort

(Lex Delicti Commissi)
 The advantages of applying this theory are:
a) While the place of the tort should be given prime
consideration, the rules should be broad and flexible
enough to be applied in exceptional cases.
b) Different issues in a case could be resolved by different
forums. This provides a more suitable solution to cases
involving various issues.
 The disadvantages of applying this theory are:
a) The theory lacks stability and certainty in the resolution of
cases, and there is doubt regarding the predictability and
 uniformity of hresult, which is contrary to the Doctrine of
Stare Decisis.
Paper: Conflict of Laws on Environmental Liability, Dr. Sema Cotoglu Koca, (2009)

Source: http://ankarabarosu.org.tr/siteler/AnkaraBarReview/tekmakale/2009-2/3.pdf

What are the two crucial objectives that determine the venue for
adjudication of cases involving trans-boundary pollution?
1) The protection of the injured party.
2) The payment of damages.
Paper: Conflict of Laws on Environmental Liability, Dr. Sema Cotoglu Koca, (2009) Source:
http://ankarabarosu.org.tr/siteler/AnkaraBarReview/tekmakale/2009-2/3.pdf

What is Climate Change?

It poses as a more pressing problem of today. It is the adverse change

of climate that is attributed directly or indirectly to human activity that
alters the composition of the global atmosphere and that is in addition
to natural climate variability observed over comparable time periods
(United Nations Framework Convention on Climate Change [UNFCC]).
As any change in climate over time, whether due to natural variability or
as a result of human activity (Intergovernmental Panel on Climate
Change [IPCC]).

What is IPCC?
It is an international body established by the UN Environment
Programme (UNEP) and the World Meteorological Organization
(WMO) which is composed of scientists from around the world. It was
established primarily to study climate change. The IPCC regularly
publishes assessment reports which provide policymakers sound
alternatives and recommendations apropos climate change in the
areas of science, adaptation, and mitigation. These reports are
foundation for sound policymaking that gives governments several
options in approaching climate change. One of the choices is to use
dirty fuel with the consequent effect of a warmer environment and more
destructive storms, or to shift to cleaner technologies that may be
costly.
 Judicially recognized.
o Massachesetts v. EPA – the harms associated with climate
change are serious and well recognized. Upholding a National
 Research Council (NRC) Report of the effects of climate change,
which consisted of:
1. Global retreat of mountain glaciers,
2. Reduction in snow-cover extent,
3. Earlier spring melting of rivers and lakes,
4. Accelerated rate of rise of sea levels during the 20th century
relative to past centuries.
 Complex progressive problem in need of a solution since its effects
are universal and irreversible leading to severe crisis for humanity
and the world, ecological balance, resulting in the extinction of
several species, and the disappearance of several small countries
from the map.
 Priority to solutions which may reduce carbon emissions, such as
fossil fuels.

Fossil fuels have high carbon emissions that contribute to global warming
leading to weather disturbances, change in weather patterns, and fierce
storms.
 Stronger storms cause devastating floods severely affecting small
and poor nations; most of whom never caused climate change, and
yet suffer more than the generators (source-states) as they could ill
afford the impacts of climate change.
 CLIMATE JUSTICE: Element of injustice in the effects of climate
change for affected states.
o Principle penalizing the source or cause of the pollution: not the
principle of the polluter pays; but instead, proposed accords on
climate change aim to make the large industrialized countries
somehow responsible by putting up a green fund for the
benefit of victim-countries/affected states.
 CONFLICT OF LAWS:
o Climate change has public and private international law aspects.
 Public International Law – those involving relationship of
nations, such as the “well-founded desire to preserve its
sovereign territory” with a sufficiently concrete interest for
judicial determination.
 Private International Law – those involving the citizens of
different countries, such as a citizen of a Victim-country
devastated by a violent storm caused by an oil company
from the Source-state for damages to life and property.
o In Private International Law, it will be difficult to assess the
applicable law because climate change may be caused in one
country, and the effects thereof are felt in another country.
 Liberal Interpretation of environmental laws.
 Applying the traditional approach utilized in torts (concepts of
causation and redressability) would weaken the system of
compensation provided in environmental laws.
Georgia v. Tennessee Copper Co.
206 U.S. 230 (1907)

State of Georgia sued Tennessee Copper Co. and Ducktown Sulphur,

Copper and Iron Company, Limited for injunction seeking to enjoin
defendant-companies from discharging noxious gases to its territory.

Is Georgia entitled to injunction? Yes.

1) Suit by the state in its capacity of quasi-sovereign – in this particular
capacity, the state has an interest independent of and behind the titles of
its citizens, in all the earth and air within its domain, notwithstanding just
compensation.
2) Fair and reasonable demand on the part of a sovereign that the air over
its territory should not be polluted on a great scale by sulphurous acid gas,
including whatever domestic destruction they have and would have
suffered by the act of persons beyond its control.
3) Proof requires mere preponderance of evidence.

Pakootas v. Teck Cominco Metals, Ltd.

452 F.3d 1066 (2006)

Teck operates lead-zinc smelter in Trail, British Columbia, generating and

disposing hazardous materials into the Columbian River located in the US.
The Environmental Protection Agency issued an Order directing Teck to
conduct a Remedial Investigation/Feasibility Study under the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) for site contamination. Teck did not comply. Pakootas filed
a citizen suit to force Teck to comply with the Order.

Teck moved for the dismissal on the ground that CERCLA has no
extraterritorial application, and that US has no jurisdiction over Teck, it
being a Canadian corporation not operating in US. Motion to dismiss was
denied.

Does the application of CERCLA involve an extraterritorial application of a

domestic law of the US? NO.
1) Location where a party arranged for disposal or disposed of hazardous
substances is not controlling for purposes of assessing whether CERCLA
is applied extraterritorially. CERCLA imposes liability for releases or
threatened releases of hazardous substances, and not merely for disposal
or arranging of such. The actual or threatened release triggers CERCLA
liability. In the case at bar, the leaching of hazardous substances from
slag that settled at the Site took place in US, hence this case involves a
domestic application of CERCLA.
2) Applying CERCLA to the Site as defined by the Order issued is a
domestic application of CERCLA. Extraterritorial application cannot be
upheld because CERCLA liability does not attach until there is an actual
or threatened release of hazardous substances in the environment (in this
case, the Site, which is the Upper Columbian River within US).
3) The argument that extraterritorial application shall be upheld because
of the fact that an act which is sought to be regulated has a foreign source
but whose effects are felt locally, is untenable. There is now a link that
allows domestic law to regulate a polluting activity which is coming from
outside the border, such that the polluting entity can be held liable. The
principle provides that it can be held liable because if its operations extend
outside a country’s boundaries, it is reasonable for it to expect that it will
be held liable for its polluting activity. This is a multi-state event and not an
extraterritorial application of domestic law.

c. Most significant relationship approach

 An examination is made as to the state that has the most
connection to a case, and the law of such state shall be applied in
the resolution of the conflict.
 Points of contact, as enumerated in the Restatement (Second) of
Conflict of Laws:
1) Place where the injury occurred
2) Place where the conduct causing the injury occurred
3) Domicile, residence, nationality, place of incorporation, and
place of business of parties, and
4) Place where the relationship, if any, between the parties is
centered.
 Point of contact in most significant relationship is the “place where
the injury occurred”. The state with the most significant relation to
a claim is usually the state in which the tort (and therefore the
injury) occurred. This state has the greatest interest in striking a
reasonable balance among safety, cost, and other factors
pertinent to the design and administration of a system of tort law.
 ABC Co. operates a polluting factory in State X, adversely
affecting residents of State Y.
o The laws of State X and State Y may be applied, depending on
other points of contact with State X or State Y.
  The laws of the state with the most significant relationship
to the case may be applied in determining the damages to
be awarded or in resolving the cause of action.

Nnadili v. Chevron U.S.A., Inc.

435 F.Supp.2d 93 (2006)

Plaintiffs are current and former owners/residents of Riggs Park

neighborhood in Washington, DC. They sued Chevron for having operated
a gasoline station in Chillum, Maryland, which is near the border between
Maryland and Washington. The gas station was alleged to have
contaminated the air, soil, and groundwater of the properties currently or
formerly owned, or occupied by plaintiffs, which resulted in the diminished
values of the subject properties.

Chevron filed a motion for summary judgment.

Whether Maryland law or District of Columbia law governs plaintiff’s

claims? District of Columbia applies.
1) State-law claims under diversity or supplemental jurisdiction – federal
courts shall decide and apply the choice-of-law rules of the jurisdiction in
which they sit. The District of Columbia adopted the “substantial interest”
approach to choice-of-law questions, where it shall balance the competing
interests of two conflicting jurisdictions, and apply the law of the
jurisdiction with the more “substantial interest” in the resolution of the
issue. District of Columbia consider the factors listed in Section 145 of the
Restatement (Second) Conflict of Laws to determine “substantial interest”.
2) District of Columbia has the greater interest in the outcome of this
litigation. While Chevron’s conduct occurred mainly in Maryland, where its
former service station and underground storage tanks are situated, and a
handful of plaintiffs are currently residing therein, it was proved that all of
the alleged contamination occurred in the District of Columbia, and the
overwhelming majority of plaintiffs reside therein.

It is said that the existence of humans on earth is the biggest contributor

to the changes that happened to it since time immemorial. Humans have
virtually altered and eroded the earth’s landscape, the seascape as well
as the atmosphere over the years. The exponential growth of the human
population has rapidly depleted earth’s natural resources including
environmental problems accompanying it affecting every country or state.
Centuries ago, efforts from many countries were commenced in order to
address, if not reverse, the environmental damage. However, these
courses of actions were not in the form of positive law, but mostly are
applied by reason of philosophy, culture, and religion. Most eastern
religions and cultural minorities emphasize on human’s stewardship role in
protecting the environment. Through the passage of time, individual
States have enacted their respective statutes, rules and regulations
implementing environmental protection. These States have also
established international rules such as those preventing and mitigating
transnational air, water, and land pollution.
However, regardless of the presence of these international agreements,
still cases involving environmental pollution is still very difficult to resolve.
The reason is that not all issues are resolved in the context of public
international law. While States have joined in comity in the resolution of
environmental cases through treaties, adjudication by the International
Court of Justice, and well as arbitration, there are instances wherein the
issues remain unresolved due to the following factors:
1) The presence or absence of a treaty or convention between certain
States.
2) The parties to the environmental case, whether between a State and
a private natural or juridical person or entity.
3) The presence or absence of jurisdiction of a court or tribunal in
taking cognizance over a particular environmental case.
4) The differences of law between countries in handling environmental
cases.
5) The issue of tort liability of the person or entity causing
environmental damage and compensation for the injured party.
The purpose of this study is to determine the answers to the following
questions:
1) What the global issues at present that are affecting the
environment?
2) How does the Philippines respond to these issues? What are the
laws, rules, and courses of action that are enacted in the Philippine
context?
3) How do other countries respond to these issues?
4) What are the differences of the courses of action done by the
Philippines from other countries?
 5) What are the primary differences in resolving environmental cases
using public international law and conflicts of law? Can both
remedies be applied simultaneously?
6) What are the courses of action that are to be undertaken to resolve
gaps or matters not currently addressed by present conflicts of laws
procedures.
What is pollution?
Pollution is defined as the action of polluting especially by environmental
contamination of man-made waste. As specifically defined, it is the act or
process of polluting or the state of being polluted, especially the
contamination of soil, water, or the atmosphere by the discharge of
harmful substances. https://www.merriam-webster.com/dictionary/pollution
What are the direct and indirect effects of pollution?
Pollution involves the introduction into the environment of material or
energy that endangers or is likely to endanger man’s health, well-being or
resources. It may affect man directly through his contact with air, water or
food, or indirectly through food supply reduction, habitat deterioration or
climate alteration.
https://repository.law.miami.edu/cgi/viewcontent.cgi?article=2001&context
=umialr
What are the basic types of pollution and their specific
characteristics?
1) Land pollution is the deposition of solid or liquid waste materials on
land or underground in a manner that can contaminate the soil and
groundwater, threaten public health, and cause unsightly conditions
and nuisances. The waste materials that cause land pollution are
broadly classified as municipal solid waste, construction and
demolition waste or debris, hazardous waste, and non-hazardous
waste. https://www.britannica.com/science/land-pollution

2) Water pollution is the release of substances into subsurface

groundwater or into lakes, streams, rivers, estuaries, and oceans to
the point where the substances interfere with beneficial use of water
or with the natural functioning of ecosystems. In addition to the
release of substances, such as chemicals or microorganisms, water
pollution may also include the release of energy in the form of
radioactivity or heat, into bodies of water. Water bodies can be
polluted by a wide variety of substances, including pathogenic
microorganisms, putrescible organic waste, plant nutrients, toxic
 chemicals, sediments, heat, petroleum, and radioactive substances.
https://www.britannica.com/science/water-pollution

3) Air pollution is the release into the atmosphere of various gases,

finely divided solids, or finely dispersed liquid aerosols at rates that
exceed the natural capacity of the environment to dissipate and
dilute or absorb them. These substances may reach concentrations
in the air that cause undesirable health, economic, or aesthetic
effects. The gaseous air pollutants of primary concern in urban
settings include sulfur dioxide, nitrogen dioxide, and carbon
monoxide. These are emitted directly into the air from fossil fuels
such as fuel oil, gasoline, and natural gas that are burned in power
plants, automobiles and other combustion sources.
https://www.britannica.com/science/air-pollution

4) Noise pollution is unwanted or excessive sound that can have

deleterious effects on human health and environmental quality. It is
commonly generated inside many industrial facilities and some other
workplaces, but it also comes from highway, railway, and airplane
traffic and form outdoor construction activities.
https://www.britannica.com/science/noise-pollution

What is international environmental law?

International environmental law is a body of international law concerned
with protecting the environment, primarily through bilateral and multilateral
international agreements.
https://www.encyclopedia.com/environment/energy-government-and-
defense-magazines/international-environmental-law

What is the historical background of international environmental

law?
The history of environmental law emanated from the early 19th century,
with its timelines as follows:
1) Before 1900
 For centuries prior to 1900, environmental responsibility
started mainly from major religious traditions and cultural
beliefs. In the Judeo-Christian tradition, it is believed that God
gave the earth to humans that he created and to pass on the
 responsibility of taking care of the environment and natural
resources. (Genesis 1:1-31)
 Other religious beliefs also took concern over the environment.
The Shinto religion of Japan as well as Buddhism, Hinduism
and Jainism also revered nature. (Bruce Rich, To Uphold the
World: A Call for a New Global Ethic from Ancient India [2010],
pp. 168-169). Islamic law also regards each generation as
having inherited “all the resources of life and nature and
having certain duties to God in using them.” (Abu Bakr Ahmed
Ba Kadar, et al Islamic Principles for the Conservation of the
Natural Environment [2nd. Ed., 1993], pp. 13-14).
 Other agreements between countries were regarding the use
of shared watercourses such as rivers that border these
states.
 There were only a few agreements regarding shared
environmental responsibility between countries because each
state prioritized national sovereignty over its natural resources.

2) From 1900 to 1972

 During this period, several countries made agreements
regarding environmental protection, as follows:
a) Canada-United States of America: Convention for the
Protection of Migratory Birds in the United States and
Canada signed on August 16, 1916.
b) Washington Convention on Nature Protection and Wildlife
Preservation in the Western Hemisphere signed on October
12, 1940.
c) Washington International Convention for the Regulation of
Whaling signed on December 2, 1946.
d) International Convention for the Prevention of the Sea by
Oil signed on May 12, 1954.
e) African Convention on the Conservation of Nature and
Natural Resources signed on September 15, 1968.

3) From 1972 to 1992

 During this span of time, the development of basic framework
of international environmental law began to form, with the
following conferences held and international agencies
established:
a) The United Nations Stockholm Conference on the Human
Environment, held in 1972, and was the first international
 conference to focus on environmental problems. Another
crucial matter that was taken up during the conference was
the issue of economic development and environmental
protection.
b) The United Nations Environmental Programme (UNEP),
established in Nairobi, Kenya.
c) The 1972 Convention for the Protection of Marine Pollution
by Dumping of Wastes and Other Matter.
d) The 1971 Convention for the Protection of World Cultural
and Natural Heritage.
e) The 1973 Convention on International Trade in Endangered
Species of Wild Fauna and Flora.
f) The Montreal Protocol on Substances that Deplete the
Ozone Layer (1987).
g) The United Nations Convention on the Law of the Sea
(1982).
h) The Vienna Convention for the Protection of the Ozone
Layer (1985).
i) The Agreement on the Conservation of Nature and Natural
Resources (1985).

4) From 1992 to 2012

 There were more than 1,100 international agreements
involving environmental protection and responsibility that were
signed by participating states. Some of the following
conventions were held, as follows:
a) The United Nations Framework Convention on Climate
Change (1992).
b) The Convention on Biological Diversity (1992).
c) The United Nations Framework Convention on Climate
Change [UNFCCC], known as the Rio Earth Summit
(1992).
d) The United Nations Conference on Environment and
Development (1992).
e) The Kyoto Protocol (1998).
f) United Nations Convention to Combat Desertification in
those Countries Experiencing Drought and/or
Desertification, Particularly in Africa (1994)

5) From 2012 up to the present day

 There were major developments in international environmental
law and policy, as follows:
 a) The linkage of international environmental law with other
areas of law such as international economic law, human
rights law, and national security law.
b) The rise of non-state actors that shaped international
environmental law, such as the multilateral development
banks and their environmental policies, the private sector
through voluntary codes of conduct and environmentally-
safety standards, public-private partnerships, stockholder
efforts, and nongovernmental organizations and civil
society.
c) The development and refinement of new international
principles and rules of international environmental law and
the increase in non-legally binding instruments.
d) A new emphasis on implementation of and compliance with
international environmental agreements.
Source: https://scholarship.law.georgetown.edu Paper: The Evolution of International
Environmental Law, 2011, Edith Brown Weiss, Georgetown University Law Center.

What are the limitations of international environmental law?

1) Implementation of international environmental law is difficult
because less-developed countries have problems in balancing
the interests of both economic development and environmental
protection.
 In these states, the most important priority is the alleviation of
poverty and not the prevention of pollution.
 The implementation of environmental measures such as the
preservation of forests take a secondary priority since forest
resources such as wood are needed for the construction of
houses needed by the population.
 New environmental standards are feared by most less-
developed countries that would bar the entry of their goods
exported to developed countries.
 These states need the financial and technological support of
highly industrialized and developed countries for the means
and technology needed for social development and
eradication of poverty in order to achieve sustainable
development. (International Environmental Law: Boundaries,
Landmarks, and Realities, Lakshman Guruswamy, University
of Colorado Law School [1995].
https://scholar.law.colorado.edu
 2) Weak enforcement of environmental laws in most countries
including highly developed and industrialized states.
 The United Nations Environment report describes that the
failure of countries to fully implement and enforce
environmental laws is one of the greatest challenges in
mitigating climate change, reducing population and preventing
widespread species and habitat loss.
https://www.unenvironment.org/resources/assessment/environ
mental-rule-law-first-global-report

3) Existence of gaps in legislation in countries having

environmental institutions that cannot fully implement laws.
 The UN Environment report stated the “Weak environmental
institutions foster noncompliance.” It also reported that if these
institutions do not have the ability to “effectively inspect,
prosecute and adjudicate environmental violations, the
regulated community may reasonably believe that violations
will not be punished.” (https://wedocs.unep.org)

4) Corruption in government is a crucial factor of poor application

of environmental laws.
 The UN Environment report also provided that “Corruption and
weak environmental institutions create an uncertain
investment climate and frequently lead to the decline of a wide
range of natural resources and growth of organized crime.”
https://wedocs.unep.org/bitstream/handle/20.500.11822/27279
/Environmental_rule_of_law.pdf?sequence=1&isAllowed=y

What is the relationship of the failure to effectively implement

environmental laws to the issue of trans-boundary pollution?
The relationship of the failure of a state in environmental law enforcement
leads to poor environmental practices such as pollution that may affect
even neighboring states.
What are the extant theories of state liability for trans-boundary
pollution?
1) A State has an absolute duty to protect against transnational harm
from ultra-hazardous activity conducted within its territory and is
strictly liable for any resultant damage.
 2) A State has a duty to use reasonable care to protect States against
extraterritorial harm from acts committed within its territory and
failure to do so renders the State responsible for damage incurred
as a result of negligence or intentional harm.

3) A State is liable if it permits trans-boundary pollution from within its

territory to exceed that which its neighbors may be reasonably
expected to endure.
Source: https://scholarship.law.wm.edu
Source: Restatement of Foreign Relations Law, Paragraph 601 (1)
[1983]
Paper: The Chernobyl Accident: A Case Study in International Law
Regulating State Responsibility for Transboundary Nuclear Pollution
(1987, Linda A. Malone, William and Mary Law School)

What are the general principles that govern customary international

law?
1) Doctrine of Equity (Ex Aequo Et Bono)
 In the Corfu Channel Case (UK vs. Albania), 1949, I.J.C, the
International Court of Justice held that “certain general and
well-recognized principles, namely, eliminating consideration
of humanity, even more exacting in peace that in war; the
principle of the freedom of maritime navigation and every
State’s obligation not to allow knowingly its territory to be used
for acts contrary to the rights of other States.”
(https://www.iilj.org/wp-content/uploads/2016/08/Summary-of-
and-extract-from-Corfu-Channel-Case-United-Kingdom-v.-
Albania.pdf)

2) Concept of Good Neighborliness (Sic Utere Tuo Ut Abenum

Non Laedus)
 This principle literally means in using one’s property so that it
will not injure others.
 In the Trail Smelter Case (US vs. Canada), 1941,
the tribunal held that “under the principles of international law
as well as of the law of the United States, no State has the
right to use or permit the use of its territory in such as manner
as to cause injury by fumes in or to the territory of another or
the properties or persons therein, when the case is of serious
 consequences and the injury is established by clear and
convincing evidence.”
(http://legal.un.org/riaa/cases/vol_III/1905-1982.pdf)

What are the legal remedies for natural and juridical persons affected
by trans-boundary pollution?
1) Recourse to treaties and conventions agreed upon by the
parties.
 Advantages: The presence of international legal instruments
in treaties and conventions enable signatory parties to resolve
the controversy by referring to provisions of their agreements.
 Disadvantages: Only State parties are allowed as regards to
treaties and conventions, unless such legal instruments
specifically provide for the means of resolution when the
parties involve private parties, with the assistance of the State
where the parties are citizens. Some State parties also lack to
political will to enforce their own environmental laws and
regulations in their respective territories. State parties to the
case that are non-signatories of the treaties and conventions
may not be bounded by such agreements.

2) Recourse to international court of justice or arbitration

proceedings.
 Advantages: There is an impartial adjudicatory body that
resolves the controversy and avoids bias.
 Disadvantages: The International Court of Justice or arbitrary
body can only obtain jurisdiction over a State that is a party to
the controversy, only if such State consents. In addition, the
enforcement of the decision of such adjudicatory body may be
difficult to accomplish because of lack of legal mechanisms
aside from treaties. Tort liability is also challenging to
determine because actual and substantial damage must be
proven. The adjudicatory body does not have injunctive
powers to prevent the defendant from performing the acts that
cause the inter-boundary pollution.

3) Recourse To Private International Law And Tort Liability

 Advantages: The application of local law may allow the
injured party to be awarded specific amount of damages
emanating from the acts of the defendant. The court can
 entitle the plaintiff to injunctive relief and prevent the
defendant from committing the acts that cause pollution.
 Disadvantages: There exists the issue of the propriety of the
jurisdiction of the court that adjudicates the case. In addition,
there is controversy on whose State law to apply.

What are the principles that need to be addressed in the issue of

trans-boundary pollution?
1) The Principle of State Sovereignty
 This principle provides that all states are sovereign and not
subject to any other determination but their own, and that all
states have equal rights and duties, regardless of differences
in social, economic, political or other forms of status.
(UN Charter, Article 2 [1] where it is proclaimed that
“sovereign equality of all its Members” is a principle of the UN,
and in the 1970 UN Declaration on Principles of International
Law concerning UN Friendly Relations which states that “all
States enjoy sovereign equality.)
This principle also embodies the exclusive jurisdiction or
territorial sovereignty over a defined geographical area, which
consists of the subsoil, internal waters, territorial waters,
including the air space over it as well as to its bed and subsoil,
and the air space above its territory, up to outer space. (Article
2 of UNCLOS)
 It also have limited sovereign rights and jurisdiction over the
contiguous zone, in the exclusive economic zone and over the
resources on the continental shelf. (Article 55 and 56 of
UNCLOS)

2) The Principle of Permanent Sovereignty over Natural

Resources
 This principle provides that states are free to wield authority
over and exploit the natural resources within their
geographical area that constitutes its territory, and to pass
laws and make decisions regarding its environment and
management of the natural resources.
(PluriCourts Research Paper No. 14-17, Prohibition of
Transboundary International Harm, [2014],
https://papers.ssrn.com/sol3/papers)
What are the major laws enacted by the Philippines on
environmental protection?
1) RA No. 9003 (Ecological Solid Waste Management Act of 2000)
2) RA No. 9275 (Philippine Clean Water Act of 2004)
3) RA No. 8749 (Philippine Clean Air Act of 1999)
4) RA No. 6969 (Toxic Substances, Hazardous and Nuclear Waste
Control Act of 1990)
5) Presidential Decree No. 1586 (Environmental Impact Statement of
1978)
6) RA No. 9729 (Climate Change Act of 2009)
7) RA No. 9512 (Environmental Awareness and Education Act of 2008)
Source: http://ecac.emb.gov.ph/?page_id=43

What are some of the conventions on the prevention of pollution in

which the Philippines is a signatory?
1) Convention on Assistance in the Case of a Nuclear Accident or
Radiological Emergency (1986)
2) Convention on Early Notification of a Nuclear Accident (1986)
3) International Convention on Civil Liability for Oil Pollution Damage
(1969 and 1992)
4) International Convention on the Establishment of an International
Fund for Oil Pollution Damage (1992)
5) London Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter (1972)
6) International Convention on Oil Pollution Preparedness, Response
and Co-Operation (2018)
7) Treaty Banning Nuclear Weapon Tests/Partial Test Ban Treaty
(1963)
8) Convention on the Physical Protection of Nuclear Material (1979)
Source:
https://en.wikipedia.org/wiki/Category:Treaties_of_the_Philippines

What are the environmental challenges that some states face and the
courses of action that they implement?
1) United States of America
 The United States of America has its share of problems in
terms of environmental issues.
 Environmental Problems in the United States: These
include soil pollution as a result of massive industrialization
and use of pesticides, especially in New Jersey, Tennessee
and Montana; air pollution due to cooking and heating
wastes, industrial processes, oil plants, and vehicle
emissions, especially at the western and eastern coasts,
Detroit, Chicago and along the Gulf of Mexico; water
pollution caused by oil spills in California and the Gulf of
Mexico, and the presence of lead in tap water in Michigan,
mercury tap water in the District of Columbia, and brown
water from taps in California; solid waste produced by
American households consisting of 65% of garbage waste
and the dumping and filling of landfills; effects of global
warming such as severe floods and hurricanes since the
United States is considered to be the second producer of
greenhouse gases after China; loss of diversity due to loss
of habitat of wildlife, partly because of global warming,
industrialization, rising sea levels; deforestation due to
conversion of lands in Alabama, South Carolina and
Florida; ocean acidification brought about by the increased
release of carbon and other pollutants into the waters such
as in coastal regions namely Florida, Mississippi, and
Louisiana; depletion of the ozone layer over central parts of
the United States; invasive species of animals from other
countries into the US, with about 40,000 to 50,000 varieties
of plants and animals invading various regions of American
states; expanding urbanization; nano-pollution; release of
toxins especially from Alaska; radioactive pollution; and
mining pollution. (https://www.bioexplorer.net/current-
environmental-issues-usa.html/)
 AMERICAN ENVIRONMENTAL POLICY: The United
States enacted the National Environmental Policy (NEPA)
which was signed into law on January 1, 1970 by President
Richard Nixon. The basic policy of the law is to assure that
all branches of the government give proper consideration to
the environment prior to undertaking any major federal
action that significantly affects the environment.
(https://www.epa.gov/nepa)
 Penalties For Breach of Environmental Laws: The
United States, through the Environment Protection Agency
(EPA) imposes Civil Enforcement of environmental laws, in
which the agency issues a notice of violation or with the
issuance of an administrative order demanding compliance,
as well as Civil Judicial Actions in which cases are filed in
court against persons or entities that have failed to comply
with statutory or regulatory requirements or which an
administrative order. The EPA can also impose Criminal
Enforcement, which involves initiating criminal action
against an entity or person depending on the nature and
severity of the violation, as well as Cleanup Enforcement
which protects human health and the environment by
getting those responsible for a hazardous waste to either
clean up or reimburse the EPA for its cleanup.
(https://environmentallaw.uslegal.com/compliance-and-
enforcement-of-environmental-laws/)
 Environmental Laws Enacted by the United States:
Clean Air Act (CAA) enacted in 1970; Clean Water Act
(CWA) enacted in 1972; Toxic Substances Control Act,
updated by Frank R. Lautenberg Chemical Safety for the
21st Century Act enacted on June 22, 2016; Atomic Energy
Act (AEA); Beaches Environmental Assessment and
Coastal Health ACT (Beach Act); Chemical Safety
Information, Site Security and Fuels Regulatory Relief Act;
Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA); Emergency Planning and
Community Right-to-Know Act (EPCRA); Endangered
Species Act (ESA); Energy Independence and Security Act
(EISA); Energy Policy Act, EO 13045: Protection of
Children from Environmental Health Risks and Safety
Risks; Federal Food, Drug, and Cosmetic Act (FFDCA);
Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA), Food Quality Protection Act (FQPA); Marine
Protection, Research, and Sanctuaries Act (MPRSA),
National Technology Transfer and Advancement Act
(NTTAA), Nuclear Waste Policy Act (NWPA); Occupational
Safety and Health Act (OSHA); Ocean Dumping Act; Oil
Pollution Act (OPA), Pesticide Registration Improvement
Act (PRIA); Pollution Prevention Act (PPA), Resource
Conservation and Recovery Act (RCRA); Safe Drinking
Water Act (SDWA); Shore Protection Act (SPA), among
 others. (https://www.epa.gov/laws-regulations/laws-and-
executive-orders#majorlaws)
 Treaties Signed by the United States: Montreal Protocol
on Substances that Deplete the Ozone Layer (1987), the
United Nations Framework Convention on Climate Change
(1992), the Convention on Biological Diversity (1992), and
the United Nations Framework Convention on Climate
Change (UNFCCC) and the Kyoto Protocol (1998).
 Conflict of Law Rules in the United States:

2) Russia
 As the largest country in the world in terms of land area
(17.09 million square kilometers), Russia has its share of
problems in terms of environmental issues.
 Environmental Problems in Russia: These include air
pollution from heavy industry, emissions of coal-fired
electric plants, and transportation in major cities; industrial,
municipal, and agricultural pollution of inland waterways
and seacoasts; deforestation; soil erosion; soil
contamination from improper application of agricultural
chemicals; scattered areas of sometimes intense
radioactive contamination; groundwater contamination from
toxic waste; urban solid waste management; and
abandoned stocks of obsolete pesticides. (Source: CIA
World Fact Book)
 Russian Environmental Policy: This is based on the
Constitution of the Russian Federation, which guarantees
the right of Russian citizens to a healthy environment
(Chapter 2, Article 42). It is designed to ensure protection,
reproduction and sustainable use of natural resources as
the prerequisites for a health environment and
environmental safety. (https://iclg.com/practice-
areas/environment-and-climate-change-laws-and-
regulations/russia)
 Penalties for Breach of Environmental Laws: Russia
imposes administrative and criminal offenses upon officers
of corporations, including directors, if the commit
environmental wrongdoings. Environmental incidents not
covered by permits require the offender to make
compensation for the environmental damage in full. If the
polluting activity is operated within permit limits, the
operator must pay only the environmental impact fee.
  Environmental Laws Enacted by Russia: Federal Law
No. 7-FZ on Environmental Protection (January 10, 2002),
Federal Law No. 96-FZ on the Protection of Atmospheric
Air (May 4, 1999), Water Code of the Russian Federation
No. 74-FZ (June 3, 2006), Land Code of the Russian
Federation No. 136-FZ (October 25, 2001), Forestry Code
of the Russian Federation No. 200-FZ (December 4, 2006),
Federal Law No. 89-FZ on Production and Consumption of
Waste (June 24, 1998), Federal Law No. 52-FZ on the
Sanitary-Epidemiological Welfare of the Population (March
30, 1999), Federal Law No. 174-FZ on ecological expertise
(November 23, 1995,
https://content.next.westlaw.com/Document/)
 Public International Law (Treaties Signed by Russia):
United Nations Framework Convention on Climate Change
(UNFCCC) and the Kyoto Protocol.
 Conflict of Law Rules in Russia:
What is the concept of jurisdiction in international law?
Jurisdiction is an aspect of a State’s sovereignty, as the right to prescribe
and enforce laws is an essential component of statehood. This right is the
limitation of a State in enforcing its laws in its territory. States are not
allowed to assert jurisdiction over affairs which are in the domain of other
States.
What are the forms of jurisdiction?
There are generally four types of jurisdiction. There is prescriptive,
enforcement, adjudicative, and functional jurisdiction.
Prescriptive Jurisdiction
The prescriptive jurisdiction in which “a State makes its law applicable to
the activities, relations, or status of persons, or the interests of persons in
things, whether by legislation, by executive act or order, by administrative
rule or regulation, or by determination by a court.” Prescriptive jurisdiction
is characterized by the following:
1) The applicability of the territoriality principle is recognized.
2) It allows a number of principles that allow States to exercise
jurisdiction on an extraterritorial basis.
(Source: Paragraph 401 (a) Restatement (Third) of US Foreign Relations
Law)
Enforcement Jurisdiction
The enforcement jurisdiction refers to the “State’s jurisdiction to
enforcement or to compel compliance or to punish noncompliance with its
laws or regulations, whether through the courts or by use of executive,
administrative, police, or other non-judicial action.”
Source: Paragraph 401 (a) Restatement (Third) of US Foreign Relations
Law.
The enforcement jurisdiction is characterized by the following:
1) States are not entitled to enforce their laws outside their territory,
“except by virtue of a permissive rule derived from international
custom or from a convention.”
2) It requires international cooperation in order to achieve its means.
Adjudicative Jurisdiction
Adjudicative jurisdiction is referred to the jurisdiction of a State “to subject
persons or things to the process of its courts or administrative tribunals,
whether in civil or in criminal proceedings, whether or not the state is a
party to the proceedings.”
The adjudicatory jurisdiction is characterized by the following:
1) Priority is given to the jurisdiction of the courts rather than the
extraterritorial applicability of the laws of the State.
2) Adjudicatory rules are more liberally applied compared to
prescriptive and enforcement jurisdiction.
3) Jurisdiction of the courts may be had if there are minimum contacts
between the State and at least one of the parties in the case.
Source: Paragraph 401 (a) Restatement (Third) of US Foreign Relations
Law.
Functional Jurisdiction
Functional jurisdiction is a term that is mostly used in the actual land, sea,
and airspace territory of a State, which refers to coastal State’s “limited
jurisdiction over certain activities in their maritime zones, and to a limited
extent, to any State’s jurisdiction over certain activities on the high seas.”
The functional jurisdiction is characterized by the following:
a) It involves both a prescriptive and an enforcement component,
which do however not necessarily coincide.
b) It may only enforce its laws in various parts of its territory, namely
the territorial sea, the contiguous zone, the exclusive economic
zone, and the continental shelf.
Source: Paragraph 401 (a) Restatement (Third) of US Foreign Relations
Law.

How can trans-boundary pollution issues be resolved?

Trans-boundary pollution matters may be resolved by the following
principles:
1) Jurisdictional reasonableness may be applied.
 The term “jurisdictional reasonableness” means that there is
flexibility in determining on which country’s law should apply
depending on the gravity of the interest of the affected State or
of the injured party.

2) Jurisdictional restraint may be applied.

 State courts and other authorities should balance the different
interests based on the various issues involved such as the
citizenship of the parties, the place of the commission of the
tortious act, as well as the effects of the act occurred.

CRUCIAL ISSUES IN INTELLECTUAL PROPERTY LAW

In the industrial age, Intellectual Property Law is very crucial when it

comes to international trade and industries. Intellectual property law is
intended to protect the rights of inventors, artists, writers and businesses
through the grant of patents, copyright and trademarks in their favor to the
exclusion of others. Intellectual-property rights are in the nature of
monopoly rights. If the right holder does not want and refuses to allow or
license the use of his patent, copyright or trademark to another person,
then the community is deprived of the benefits of the right holder’s
creation.However, these rights are not always enjoyed by the holder of
intellectual property rights. These issues include: Using the same logo of
one product with the same nature, copying a logo in a manner that will to
cause consumers to think they are purchasing a product that they think is
the original, Making copies of copyrightable materials such as music
recordings, movies, and other related media and distributing them for
profit without the owner’s consent, Manufacturing a patented item without
obtaining a license from the patent owner. Intellectual Property Rights
infringement are also committed across borders. According to Sintia
Radu, a staff writer of usnews.com, there are a lot of threats to the United
States in terms of Intellectual Property Rights with China being the
number one on the list. Other counties include Indonesia, India, Algeria,
Kuwait, Saudi Arabia, Russia, Ukraine, Argentina, Chile, and Venezuela.
https://www.legalmatch.com/law-library/article/types-of-intellectual-
property-disputes.html
https://www.usnews.com/news/best-countries/slideshows/these-countries-
pose-the-biggest-ip-protection-threats-according-to-the-us

LAWS RELEVANT TO INTELLECTUAL PROPERTY RIGHTS

There are many Intellectual Property Laws and Treaties which are
followed by different states. The Paris Convention Convention for the
Protection of Industrial Property, which was enacted on March 20, 1883, is
one of the first treaties which was enacted in order for the protection of
Industrial rights as well as Intellecual Propery Rights. Acccording to The
World Intellectual Property Organization, The substantive provitions are
divided into three main categories: National Treatment, Right of Priority,
and Common Rules. National Treatment provides that the Contracting
State must grant equal protection to nationals of other Contracting States .
Nationals of Non-Contracting States are also entitled to national treatment
if they are domiciled in a Contracting State while having an effective
industry. The Right of Priority provides that, an applicant of one
Contracting State may apply for protection to other Contracting Sates
within a certain period of time. The Common Rules provision, it provides
for the rules to be followed by Contracting States.

The Berne Convention, which was enacted on December 5, 1887 was

created for the protection of Copyright Law. This convention introduces
the concept that an artistic and literary work is protected the moment it is
created rather than requiring registration. It mandates other Convention
States to recognize the copyright of other Convention States. In the Berne
Convention, it is stated that a copyright shall remain protected 50 years
after the death of the author with the exlusion of photographic and
cinematographic works. In photographic works, the photograph is
protected after 25 years from the time the photograph was taken. As to
Cinematographic works, it is protected 50 years after its first showing. If
the author is unknown or is working under a pseudonym, his work shall be
protected for a term of 50 years after publication. Under Article II, Section
1 of this Convention provides that the expression “literary and artistic
works” shall include every production in the literary, scientific and artistic
domain, whatever may be the mode or form of its expression. Although
the author has exclusive rights over his work, it is still subject to
limitations. Other individuals other than the author may also exercise the
following: the right to translate the work, the right to make adaptations and
arrangements to the work, the right to perform the work in public, the right
to recite the work, the right to communicate the work to the public, the
right to broadcast the work, the right to make reproductions of the work,
and the right to use the work as a basis for an audiovisual work. The
Berne Convention also establishes the Three-step test which gives
exemption to: (1) Special Cases, (2) If the exception does not conflict with
a normal exploitation of the work, and (3) that the exception does not
prejudice the interests of the author. The Three-step test is tantamount to
fair use. There are however issues when it comes to settling disputes in
court. Claims for statutory damages can only be claimed for registered
works which is contrary to the very purpose of the Convention.

Republic Act 8293 was enacted on January 1, 1998 for the creation of
the Intellectual Property Code of the Philippines in order to have an
effective intellectual and industrial property system. This Act has repealed
Republic Acts 165 and 166, Presidential Decree nos. 49 and 285, and
Article 188 and 189 of the Revised Penal Code. Under this Act, the
following works are protected: (1) Copyright and related rights, (2)
Trademarks and service marks, (3) Geographic indications, (4) Industrial
designs, (5) Patents, (6) Layout designs of integrated circuits, and (7)
Protection of undisclosed information. This Act also led to the creation of
the Intellectual Property office comprised of the Bureau of Patents, Bureau
of Trademarks, Bureau of Legal Affairs, Documentation, Information and
Technology Transfer Bureau, Management Information System and EDP
Bureau, and Administrative, Financial and Personnel Services Bureau.
Being a domestic law, its application however extends to international
borders. Section 3 of this act provides that “Any person who is a national
or who is domiciled or has a real and effective industrial establishment in
a country which is a party to any convention, treaty or agreement relating
to intellectual property rights or the repression of unfair competition, to
which the Philippines is also a party or extends reciprocal rights to
nationals of the Philippines by law, shall be entitled to benefits to the
extent necessary to give effect to any provision of such convention, treaty
or reciprocal law, in addition to the rights to which any owner of an
intellectual property right is otherwise entitled by this Act.”There are
significant features of the law which includes the introduction of the First-
to-Invent system rather the First-to-File system in the case of inventions.
Others include the extension of the period of grants of other works.

The Agreement on Trade-Related Aspects of Intellectual Property

Rights (TRIPS)is an International Agreement between member states of
the World Trade Organization. It was in this agreement that linked
intellectual property with trade issues worldwide. These issues include
piracy, counterfeiting, and infringement of Intellectual Property Rights.
This Agreement has laid down minimum standards of protection to be
provided by each member state, namely: the subject-matter to be
protected, the rights to be conferred and permissible exceptions to those
rights, and the minimum duration of protection. However, before these
standards can be provided by each member state, the substantive
obligations of the WIPO, the Paris Convention, and the Berne Convention
must be complied.
https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
http://www.chanrobles.com/legal7code.htm#.XbpCgJozY2w
https://www.wipo.int/treaties/en/ip/berne/summary_berne.html
https://www.wipo.int/treaties/en/ip/paris/summary_paris.html

RELEVANT JURISPRUDENCE

Since Intellectual Property is now crucial in today’s trade,

Intellectual Property infringement is now rampant nowadays. From
identical marks to exact imitations, this is the reason why a number
of Jurisprudence about Intellectual Property was decided by Courts
of different jurisdictions.

In Whitmill v. Warner Bros. Entertainment Inc, Mike Tyson’s tattoo

artist S. Victor Whitmill filed a lawsuit against Warner Bros. Entertainment
on April 28, just weeks before the Hangover Part II movie’s opening for
copying the left eye tribal tattoo of Mike Tyson which was used in the . He
claimed that he obtained a copyright for the “artwork on 3-D”and that the
use of his design in the movie and in advertisements without his consent
was copyright infringement. Warner Bros., of course, saw it as a parody
falling under “fair use.” On May 24, 2011, the Court the Eastern District of
Missouri denied to order an injunction on the movie’s release, but the
same court said Whitmill still had a case. Warner Bros. claimed that it
would be willing to “digitally alter the tattoo used on the film.

In Kellogg Co. V. National Biscuit Co. Henry Perky created a cereal

known as Shredded Whole Wheat. John Harvey Kellogg criticized the
cereal and said that eating the cereal was like “eating a whisk broom.” The
product surprisingly took off. Perky died in 1908 and his two patents, on
the biscuits and the machinery that made them, expired in 1912. The
Kellogg Company began selling a cereal Identical to the cereal of Perky.
In 1930, the National Biscuit Company filed a lawsuit against the Kellogg
Company, arguing that the new shredded wheat was a trademark violation
and unfair competition. Kellogg then claimed the suit as an attempt to
monopolize the shredded wheat market. In 1938, the case was brought to
the Supreme Court, which ruled in favor of the Kellogg Company. The
Court held that the patent had already expired. Hence, it can be copied.

In Mattel Inc. V. MGA Entertainment Inc., MGA filed a lawsuit

against Mattel, claiming that the line of “My Scene” Barbies copied the
big-headed and slim-bodied physique of Bratz dolls. Mattel then accused
Carter Bryant, the designer of Bratz dolls for designing the doll while on
Mattel’s payroll. Bryant worked for Mattel under a contract that stipulated
that his designs were the property of Mattel. In July 2008, the Court ruled
in favor of Mattel, forcing MGA to pay Mattel $100 million and imposed an
injunction to MGA for a year.

In Baigent and Leigh v. The Random House Group Limited, authors

Michael Baigent and Richard claims that Dan Brown had cribbed the
“central theme” and “architecture” of their 1982 book The Holy Blood and
the Holy Grail. Both books interpreted the Holy Grail as the bloodline of
Jesus and Mary Magdalene alleging that they both had a child. Baigent
and Leigh accused Random House, their own publisher for copyright
infringement. The Court ruled that historical research is fair game for
novelists to explore in fiction.

In Lucasfilm Ltd. v. Committee for a Strong, Peaceful America,

Lucasfilm Ltd. filed a accused High Frontier and the Committee for a
Strong and Peaceful America, for trademark infringement for referring to
the Strategic Defensive Initative (SDI) as “Star Wars” in television and
literature. Although Lucasfilm Ltd. obtained a trademark for the brand Star
Wars, the Court ruled in favor of the interest groups and their legal right to
the phrasing so long as they didn’t attach it to a product or service for
sale.

In A&M Records, Inc. V. Napster Inc, Shawn Fanning, created

Napster, a peer-to-peer music sharing service that allowed users to
download MP3s for free. A&M Records, as well as several other record
companies affiliated with the Recording Industry Association of America
filed copyright infringement charges against Napster. Napster was found
guilty. Hence, Napster was shut down.

In Adidas v. Payless Shoesource Inc., Adidas accused Payless for

copying the three-stripe logo of Adidas. Adidas claimed that it recently
registered the trademark of the three-stripe logo since 1952. Payless was
selling similar shoes with two and four parallel stripes. The two companies
came with a settlement, but Payless sold the look-alike shoes again in
2001.Adidas America Inc. demanded a jury trial. During the trial 268 pairs
of Payless shoes were reviewed. Adidas won the case and was awarded
$305 million—$100 million for each stripe,

https://law.justia.com/cases/federal/district-
courts/FSupp/622/931/2395863/
https://law.justia.com/cases/federal/district-courts/FSupp/38/643/2096382/
https://law.justia.com/cases/federal/appellate-courts/ca9/11-56357/11-
56357-2013-01-24.html
https://law.justia.com/cases/federal/district-
courts/FSupp/622/931/2395863/
https://www.copyright.gov/fair-use/summaries/a&mrecords-napster-
9thcir2001.pdf
https://www.courtlistener.com/opinion/1870616/adidas-america-inc-v-
payless-shoesource-inc/
https://dockets.justia.com/docket/missouri/moedce/4:2011cv00752/11328
7
https://www.5rb.com/wp-content/uploads/2013/10/Baigent-v-Random-
House-CA-28-Mar-2007.pdf