International Intellectual Property Dispute Resolution: Is Mediation a Sleeping Giant?

By Collar, Carmen; Spolter, Jerry | Dispute Resolution Journal, August 1998 | Go to article overview

International Intellectual Property Dispute Resolution: Is Mediation a Sleeping Giant?


Collar, Carmen, Spolter, Jerry, Dispute Resolution Journal


What can mediation offer parties to international intellectual property disputes? A great deal, according to the authors. The commercial world is becoming internationally interdependent, they note. Conflict arising out of this burgeoning interaction is inevitable and will lead to increasing demands for expedited, inexpensive methods of dispute resolution, even within the traditionally mediationresistant European Community. Mediation is particularly applicable to disputes that are time-sensitive and often demand solutions that promote continued business relationships. This article appears in the May Journal of World Intellectual Property, published in Geneva.

"In a micro-electronic patent or a computer software copyright dispute, litigation or arbitration can take longer than the life-cycle of the product concerned: a preliminary injunction can kill an entire product line, and a damage award will invariably come too late, at a time when the victim may have already been ruined. "

Christian Burhring-Uhle1

The world of intellectual property law calls for dispute resolution mechanisms as fast-paced and efficient as the evolution of the underlying technology and ideas which are the subject of the disputes.

International, multibillion-dollar corporations engaged in the pursuit of business profits derived from intellectual property simply cannot afford the time and resources to sit around with a phalanx of attorneys waiting years and spending millions to resolve disputes pertaining to trademarks, copyrights, patents, and trade secrets.

When a dispute arises between a U.S. licensor and an Asian licensee concerning a high-tech product, both parties generally want a prompt resolution and one which will preserve ongoing business relationships.

Just as the trial courts have often given way to the perceived advantages of arbitration in the U.S., so too will arbitration ultimately give way to mediation in the international arena.

This paper has four objectives: (1) to introduce the international practitioner to the beneficial characteristics of the mediation process which make it worthy of consideration as an effective dispute resolution mechanism; (2) to highlight the essential considerations of how to initiate a mediation: when, where, and by whom; (3) to describe the major organizations which provide mediation panels and forums; and (4) to discuss the current and prospective use of mediation in the international intellectual property field.

The authors are convinced that mediation is the wave of the future for international dispute resolution and that intellectual property disputes are particularly well-suited to this process.

I. What Mediation Is and Why It Succeeds First, we need to define the terms.

A. Terminology

1. Intellectual property comprises two main branches: (1) industrial property, chiefly inventions and trademarks; and (2) copyright, chiefly in literary, musical, artistic, photographic, and audiovisual works.2

2. International Intellectual Property Disputes originate mainly due to different levels of protection, varying definitions of intellectual property and the existence of different systems and tribunal procedures in various nations,3 with particular vulnerability to many cultural, conceptual, technical, and procedural misunderstandings.4

There are two primary categories of international high technology disputes. First, where there is no prior relationship involved, but simply a claim that someone is stealing or misusing your rights. Second, where some relationship exists between the parties to the technology, either through a contract or course of dealing.5 It is the second type of dispute which this article will address. These intellectual property disputes are unique in that they often do not exclusively pertain to financial damages, and virtually always involve an ongoing business relationship.

3. …

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