Mediation is a form of ADR that is increasingly being used to resolve disputes. FILE PHOTO | NMG
Enforcement of intellectual property rights (IPS) is an important aspect for holders to attain maximum gain out of the ownership.
One
cannot file a dispute unless they hold a valid IPR. For example, one
cannot purport to file a trademark infringement case against a third
party if they have not had the trademark registered.
Many
global corporate giants have an active intellectual property litigation
strategy to enable the corporate attain and maintain a competitive
edge. This means that the corporate will litigate against third parties
when the subject involves their IPRs. In so doing, these corporates are
able to defend their market position globally.
I would
want to highlight alternative dispute resolution ( ADR) as a part of the
dispute resolution mechanisms that IPR holders can pursue. ADR includes
arbitration and mediation as some of the tools of dispute-resolution.
The use of ADR has been encouraged and I would like to highlight its
possible usage in resolving IP related disputes.
Mediation
is a form of ADR that is increasingly being used to resolve disputes.
Only recently in Kenya has mediation been formally embraced as part of
the dispute- resolution process where applicable. There are some cases
that had initially been filed in court, but qualifying cases are
referred by the Judiciary to a mediator for partial or whole settlement
of some aspects. Mediation is advantageous as a dispute resolution
mechanism for several reasons. First being that in some cases it is
faster and cheaper than the court process. A good mediator would be able
to pick up the issues from the parties very fast and would help the
parties resolve those issues.
It is interesting to note
that not all issues are related to the subject matter. One may be
surprised to find out during the mediation process, that the issue was
relational.
Mediation is also preferred as it is
conciliatory where one of the key goals for the parties is attaining a
win-win settlement thereby preserving the relationship. Mediation is
therefore ideal where there is a relationship that parties desire to
preserve for example family or business relationships.
The
modern organisation is beginning to appreciate the need for mediation
and many of such organisations are increasingly including mediation as
part of internal and external dispute resolution, for example with
employees and third parties such as suppliers.
When it comes to intellectual property dispute resolution
therefore, mediation is advisable where the parties have a relationship
to maintain and for a win-win settlement. Such example is where the IPR
is jointly acquired or the subject matter of the IPR is to be jointly
implemented. Mediation can be introduced into some IP- related contracts
such as joint ventures, employment contracts licensing, computer
contracts and technology transfer agreements.
There are
professionally trained mediators who would be able to handle IPR
disputes. However I would recommend the inclusion of World Intellectual
Property Organisation (WIPO) mediation clauses into some IP related
contracts. WIPO Mediation is a mechanism that is able to handle both
domestic and cross border disputes. A mediator would be appointed to
conduct the dispute till finalisation. The WIPO Mediation Rules would
guide such a process and the mediators are selected from a panel known
as the WIPO Neutrals.
I believe that inclusion of the
WIPO Mediation process as part of dispute resolution is further
beneficial to parties as the mediators have skills in mediation and
intellectual property rights.
Mediation is however not advisable if the IPR dispute requires harsher penalties.
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