JAPAN Trends and Developments Contributed by: Hideaki Kobayashi, Hirofumi Tada, Hiroyuki Kimura and Hiroyuki Ohno, Ohno & Partners
Established distribution channels and recognition of joint tort liability If the distribution channel is clearly established, there are cases in which joint tort liability has been recog- nised even when the subject goods are assigned out- side Japan. For example, in the Tokyo District Court judgment of 28 November2007 (Heisei 16 (Wa) No 10667), in a case where it was recognised that the defendant products sold overseas would be imported as-is or incorporated into ADSL modems and then further assigned to third parties, it was held that such con- duct could be evaluated as aiding or abetting a tort. Furthermore, in the Tokyo District Court judgment of 24 September 2020 (Heisei 28 (Wa) No 25436), it was held that, in the case of sales to a Japanese buyer where it is contemplated that the goods will be import- ed into Japan after delivery to the buyer, even if the “assignment” itself is carried out outside Japan, the application of Article 102, Paragraph 2 of the Patent Act is permitted with respect to the defendants’ profits calculated based on such sales.
Although it is theoretically conceivable for the com- ponent manufacturer to file a lawsuit against its client in Japan using intellectual property rights, bringing an action against a client is not normally considered in business practice and is not realistic. Therefore, rights holders sometimes file lawsuits in Japan against over- seas manufacturing and sales by component manu- facturers by asserting joint tort liability with the client. The Tokyo District Court decision of 27 February 2026 (Reiwa 5 (Wa) No 70083, etc) is precisely such a case, in which YKK, a fastener manufacturer, filed a suit in Japan against TH Global, a Chinese component man- ufacturer, and others. YKK asserted the doctrine of piercing the corporate veil between non-party TH Zipper, which uses the same trade mark “TH” as TH Global, and the defend- ant TH Global and others, and also asserted joint tort liability regarding exhibition acts by TH Zipper at a trade show held in Japan. However, the judgment denied the establishment of these claims. It also found that it could not be determined whether the products exhibited at the trade show were the defendant’s products, excluded the exhibition acts by the non- party TH Zipper from the factors to be considered, and dismissed YKK’s claims. Issues remain, such as whether the claims would still be dismissed even if the exhibition acts in Japan by TH Zipper were found to relate to the defendant’s products, and a decision by the High Court is awaited.
178 CHAMBERS.COM
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