MEDIATION IN INTELLECTUAL PROPERTY RIGHTS: A GLOBAL PERSPECTIVE

INTRODUCTION

With an eye towarda robust justice system, there is an urgent desideratum for a paradigm shift from monotonous court vying of adversaries to giving room to consensual resolutions.Mediation is a flexible, legally sanctioned, and non-adjudicatory form of Alternative Dispute Resolution (ADR). The process involves confidential negotiation between the parties, to resolve disputes and to reach a speedy settlement cost-effectively, with the help of a Mediator (the term has been derived from the Latin term ‘Medius’, which means middle). The role of the Mediator is to assist the parties to arrive at an amicable solution. A mediator should have technical expertise in the matter and he can’t impose decisions on the parties. Mediation facilitates a win-win situation for the parties. So, it offers a lucrative option to parties that hold in high regard to preserve the relationship of the parties. Herein, the commercial relationship between the parties.

Intellectual Property Rights (IPR) are exclusive rights bestowed upon individuals for their creativity and inventions relating to industrial, scientific, literary, and artistic fields, to prevent others' unauthorized use of their works. It includes intangible assets like copyrights, trademarks, patents, geographical indications, etc. The disputes arising due to the violation of these rights could be several. Considering the litigation procedures to resolve the disputes related to IPR, it generally bestows on myriadhitherto cases of the courts, leading to bubble over and catering to neglect the nuances of the cases. Therefore, it is high time to call for an alternative solution to deal with disputes associated with IRP. “Mediation as an Alternative Dispute Resolution in IPR” is a key step in the right direction in this regard.

Mediation in issues of IPR; its Scope

Mediation as an approach can be guided by the business interests of the parties. It can be considered a great way to sort out arenas of commercial patent disputes, software disputes, matters relating to trade secrets, trademarks, trade dress, unfair competition, and disputes arising out of basic copyright infringement. Mediation not only helps individuals to veer from traditional, cumbersome, and expensive litigation methods to resolve conflicts across the country but also aids in addressing cross-border IPR disputes.

There are certain stakeholders, such as

• Right Holders- The individuals are the owners of Intellectual Property Rights and they retain rights against any kind of infringement.
• Infringers- The individuals who are presumed to have caused a breach of the IP Rights of Right Holders. They can be involuntary and unintentional infringers or voluntary infringers, who have reasonable knowledge that it might violate Right Holder’s IP rights.
• Mediator- The third party who holds a neutral position in the process of mediation, and facilitates collaborative efforts to resolve the conflicts between the Right Holders and Infringers, harmoniously.
• Licensees-The individuals who, under some discrete arrangements, have been permitted the rights to use the IPR by Right Holders.
• Lawyers- Individuals who represent/speak for the Right Holders, Infringers, and Licensees, and make sure that they abide by the legal regulations and procedures.

IPR Mediation vs IPR Litigation

• In mediation, parties have control over the consequences, they get an opportunity to discuss the concern with the help of the Mediator to conclude. This fair chance is not provided under the litigation process, rather the judge dictates his judgement upon the case.
• Mediation is cost-effective as compared to litigation, thereby saving legal fees and minimizing the costs. It provides speedy resolution as the process does not have many formalities and complications.
• Intellectual Property Rights generally covers sensitive data and information. Thus, to protect data privacy, Mediation has unparalleled benefits in this regard, contrary to litigation, which does not adhere to strict confidentiality.
• The mediation procedure is flexible, as the parties are offered a fortuity to decide the venue, timetable, and ground regulations for the mediation sessions. But, this opportunity islacunae in case of litigation.

IPR Mediation Process

Effective execution of this distinctive form of Alternative Dispute Resolution, Mediation requires proper implementation and cautious planning. It is vital to follow the procedures in a step-by-step manner, to reach a negotiable ground for the parties. There shall be a pre-existing Agreement of Mediation between the parties involved in IPR disputes. They shall be provided an even break to choose a neutral Mediator. Furthermore, a case synopsis is prepared and presented by both parties, delineating their shoes on the dispute consisting of legal arguments along with pertinent facts and the intended result.

Later on, there is the Mediation Session. In this session, parties put forward their opening statements before the very eyes of the Mediator, who demonstrates the core bylaws to be adhered to. Both, an explicit and mutual discussion together among the parties and the Mediator and separate caucuses (each party has disparate discussions with the Mediator)take place. Negotiation and settlement come to pass only by agreeing upon a common ground, and rapport and by considering making compromises. Lastly, a Settlement Agreement is made, incorporating the agreed-upon terms and it shall be signed by the parties.

IPR Mediation; Case Brief & Relevant Data

The case of Salem Advocate Bar Association vs Union of India, 2005, is a crucial precedent that mentions the extent to which IPR Disputes can be resolved through mediation. Also, the case of Bajaj Auto Ltd. vs TVS Motor Company Ltd., 2010, highlights the numerous advantages of opting for mediation as against litigation.  The case of Afcons Infrastructure Ltd. & Anr. v. Cherian Varkey Construction Co. (P) Ltd., 2010, gave rise to the Model Civil Procedure Mediation Rules, which have been endorsed and adopted by the Supreme Court of India and the other Indian High Courts throughout the nation. This case doesn’t have a direct impact on Intellectual Property Rights Disputes but paved the way by exerting the significance of Mediation in such dispute resolutions.

On the international frontier, the World Intellectual Property Organisation (WIPO) was established in 1967, headquartered in Geneva, Switzerland. It is a global body, which is completely dedicated to the creation of a well-proportioned and far-reaching Intellectual Property system. WIPO’s Arbitration and Mediation Centre was established in 1994 to provide recourse to Alternative Dispute Resolution (ADR) to resolve international commercial disputes between the parties. Further, the records of the World Intellectual Property Organisation’s Arbitration and Mediation Centre divulge that it handled over 220 cases, most of which were filed during its founding years between 1994 and 2007 and the number of cases has been increasing ever since then.

IPR Mediation; Hidden Challenges

Every aspect has two faces of a coin. Thus, while a bunch of advantages exist, there are a few obstacles in the IPR Mediation process which need to be acknowledged and addressed by proliferating awareness regarding the importance of Mediation and elucidating the reason why mediation in IPR can be beneficial over litigation. The technical complexity of Intellectual Property Rights requires specific expertise, making Mediator selection a little difficult task. Due to the informal process, it might lack discipline and might as well put one party in a dominant position.

There are high chances of misuse of the process by the disputing parties or the Mediator. Disputes involving public interests, such as the “leaky homes” conflict in New Zealand can’t be resolved by Mediation. Some other challenges are that many individuals still believe in bogusly held myths that Mediation might not be an appropriate way of dispute resolution where financial stakes are high and in cases where individuals are sensitive towards their IPR, serving as arduous to make compromises. Another possible challenge is a commensurate unwillingness on the part of attorneys to engage in a procedure with which they are unfamiliar or unconfident.

Initiation of Mediation in the early stage, before the position of the parties solidifies is a potential shot to overcome these challenges. 

CONCLUSION

Mediation has offered fierce competition to traditional litigation techniques. Intellectual Property Rights have also expanded over time with multiple initiatives, the TRIPS Agreement of 1995 (regulated by the World Trade Organization), being the most eminent effort of all of them. WIPO through its Arbitration and Mediation Centre, casts about for usage of various forms of Alternative Dispute Resolutions to address the conflicts revolving around IPR.

IPR Mediation continues to universally exist as a valuable tool for quicker and more cordially settling conflicts. It maintains business connections between the parties while encouraging the continuous development of creativity and technology. It empowers individuals to foster a culture of cooperation and innovation along with safeguarding their Intellectual Property Rights. Due to its immense benefits such as confidentiality, feasibility, flexibility, cost-effectiveness, faster resolution, and preservation of commercial relationships, Mediation is much more likely to be preferred over litigation.

Mediation does only limits the growing dependency on courts but also withal to permits disputants to negotiate through alternative resolution methods. In addition, Mediation in IPR being a sound alternative also serves as a strategic investment in future IP protection. Despite these multifarious advantages, Mediation still has a long way to go before it ends up on par with litigation due to its hidden challenges. Therefore, it is a nick of time for legal systems around the globe to realise the gravity of IPR Mediation and embrace it as the mainstay of contemporary IP conflict resolution.