Resolving IP Disputes through Mediation and Arbitration

Intellectual property (IP) rights are only as strong as the means to enforce them. One way in which WIPO addresses issues of enforcement and dispute resolution is through its Arbitration and Mediation Center which has offered efficient specialized alternative dispute resolution (ADR) procedures since 1994.

The potential of mediation and arbitration for preventing and resolving IP disputes has not been fully realized as most IP owners and IP lawyers still rely on traditional means of court litigation. But perceptions have started to change due to a number of related developments that have taken place over the last ten years. First, the economic importance of IP has grown to the extent that, for many companies, IP rights are their basic assets, and disputes involving these rights can interfere with, or even paralyze, their activities. At the same time, as IP assets are marketed and exploited across borders, disputes involving these assets are likely to concern multiple jurisdictions. In addition, IP owners are increasingly engaged in complex contractual relationships which involve parties in different forms of cooperation in research and development, production or marketing.

The trend towards ADR has been reinforced by the success of domain name dispute resolution procedures such as the Uniform Domain Name Dispute Resolution Policy (UDRP), which provides trademark owners with an efficient remedy against the bad-faith registration and use of domain names corresponding to their trademark rights. Moreover, a growing number of procedural laws encourage, or even require, the use of ADR.

Advantages

The advantages of ADR are increasingly recognized. They include the following:

* A single procedure. Court litigation in international IP disputes can involve a multitude of procedures in different jurisdictions with a risk of inconsistent results. Through ADR, the parties can agree to resolve in a single procedure a dispute involving a right that is protected in a number of different countries, thereby avoiding the expense and complexity of multi-jurisdictional litigation.

* Party autonomy. Because of its private nature, ADR offers parties greater control over the way their dispute is resolved. Unlike in court litigation, the parties may choose the procedural rules, the applicable law, the place and the language...