Harnessing Mediation For Effective Resolution Of Intellectual Property Rights Conflicts

Intellectual Property Rights: An Overview

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce^[1]. Largely, it covers all types of intangible creations. These creations are protected by the legal system by providing monopoly rights to encourage the efforts of inventors in terms of manpower, time, energy, skills etc. by enabling the inventors or creators to harvest the economic benefit from their inventions. In simple terms, IPR aims to create a safer environment for inventors, creators, scientists, artists, designers, traders, etc. to foster their creativity, innovation skills, scientific or technological advancements. Like physical properties, IPR can also be sold or brought, if the inventors choose to register them with a legal authority. There are four main types of intellectual property: Copy right, Trademark, Patent and Trade secret. WIPO is a specialized agency of the UN. It was formed in 1967, to encourage creativity and promote protection of intellectual property around the world^[2]. An IP dispute is a dispute over Intellectual Property rights. A good and efficient legal mechanism is needed to protect these rights from any type of infringements or any other dispute. Absence of this mechanism will result in death of confidence of inventors, lack of advancements and innovation and thus it will result in economic loss. In today's global world, IPR has become a focal point in trade practices as a result disputes arising from these practices have also become innumerable. In IPR disputes, the “mens rea” of the infringer is not taken into account, intellectual property infringement though unintentional is still illegal and not acceptable. The issues related to IPR generally arise when the innovator or creator or the right holder finds out that others are taking undue advantage of their intellectual property and even without consent. These innovators can be individuals, firms or businesses.The most significant Intellectual property disputes include Copyrights, Trademarks, patents and trade secrets^[3].

1. Copyrights Disputes: Copyrights includes digital work as well as printed work and its infringement arises when someone uses the copyright material without the consent of copyright holder. Music and movies suffer significant amount of infringement. Copyright disputes also includelicensing conflicts.
2. Trademark Disputes: Trademarks secures words, phrases, symbols, logos that are used to identify particular goods and services, Trademark infringement is the unauthorized use of same words, phrases, symbols and logos as of right holder to cause confusion, deception or misunderstanding.
3. Patent Disputes: Patent covers inventions of a process, method, machine etc. Patent Infringement occurs when someone uses or sells a patented item without the consent of inventor. Patent disputes also cover validity issues.
4. Trade Disputes: Trade secrets are the rights on confidential information which can be sold or licensed. The infringement is unauthorized use, disclosure or misappropriation of such confidential information.

Complexities Of Intellectual Property Rights Disputes

Intellectual Property Rights (IPR) addresses assets that are intangible or ethereal, making related disputes both complex and challenging. The primary aim of IPR is to safeguard the creativity and inventiveness of creators. While these rights are typically territorial, the issues they involve often extend beyond national borders, necessitating international cooperation. Each category of intellectual property—trademarks, patents, copyrights, and trade secrets—features unique protection mechanisms and is governed by specific rules and regulations tailored to its nature.

Intellectual Property Rights Disputes are complex due to several factors:

1. Jurisdictional Issues: In today's globalized world, trade and commerce, along with the associated disputes, often span across national borders and concerns multiple jurisdictions. Many intellectual property disputes cross these borders, highlighting the need for international cooperation through treaties and agreements. Crafting intellectual property laws that align with international standards while respecting national sovereignty poses a significant challenge.
2. Technical Legal Framework: Intellectual property laws are complex and intricate, requiring expertise from knowledgeable specialists. This complexity presents considerable challenges for inventors and creators, making it difficult for them to fully understand their rights and obligations.
3. Intersection of Legal Regimes: Intellectual property law intersects with various other areas of law, including competition law, contract law, and trade law. These interdisciplinary interactions contribute to the overall complexity of intellectual property issues.
4. Enforcement Difficulties: Enforcing intellectual property rights can be particularly challenging due to several factors. These include jurisdictional conflicts, the anonymity of online infringements, and the high costs associated with legal proceedings. Moreover, the effectiveness of enforcement can vary significantly from one country to another.
5. Balancing Public and Private Interests: Intellectual property laws aim to strike a balance between promoting innovation and creativity through exclusive rights granted to creators and ensuring that the public benefits from the dissemination of knowledge and cultural works. Finding this balance between rewarding creators and encouraging competition can be a complex task.

Navigating Intellectual Property Disputes: “Mediation As An Alternative To Litigation”

When a dispute related to intellectual property rights arises, court proceedings are not the only solution. Referring these disputes to mediation can be advantageous, considering the complexities and technicalities involved. For instance, disputes concerning standard essential patents, domain names, software, typeface infringements, copyrights, trademarks, and patents involve technical knowledge that judges may find challenging to fully understand and in mediation parties are free to choose Intellectual Property Rights experts as their Mediators. Mediation, being a voluntary process, allows parties to engage in mediation at any time, even midway through litigation if the proceedings are not progressing as hoped. Additionally, parties can terminate the mediation process at any time, thus avoiding unnecessary costs.One of the advantages of mediation is its flexibility. It permits parties to discuss issues outside of the strict legal framework and explore a wide range of creative and unique solutions suited to their specific needs—solutions that may not be feasible in court or arbitration.Mediation is typically less expensive, less time-consuming, and more efficient than litigation, providing a significant advantage. Being a non-adversarial process, mediation allows outcomes to be shaped by the parties themselves rather than being imposed on them, which often results in a win-win situation for both sides. It also gives parties greater control over the process, a notable departure from the traditional litigation method.Another critical advantage of mediation is its confidentiality. It safeguards sensitive information such as trade secrets from public disclosure, which is not possible in litigation due to open court proceedings. Mediation also helps preserve commercial relationships by fostering cooperation and collaboration, which is particularly valuable in maintaining licensing agreements and other business relationships.Given that intellectual property disputes are often transnational and involve multiple jurisdictions, mediation, being universal, transcends territorial concerns and serves as a compelling alternative to litigation. Overall, Mediation presents a practical and effective alternative to traditional litigation in intellectual property disputes. Its flexibility, cost-effectiveness, confidentiality, and ability to preserve relationships make it an appealing option for parties seeking a resolution that goes beyond the constraints of the courtroom.

Judicial Approach In India With Regards To Mediation In Intellectual Property Disputes

The Indian judiciary is effectively endeavoring to integrate mediation and settlement into the realm of intellectual property rights disputes, a trend gaining traction as evidenced by its increasing use in resolving such cases. This shift is largely due to the protracted nature of IP disputes in litigation, which can take forever to resolve owing to the inherent complexity of the subject matter. Additionally, mediation in IP disputes is supported by legislation. The Mediation Act^[4] provides a robust framework for mediation, while Commercial Courts Act^[5] mandates pre-litigation mediation for IP disputes, except in cases requiring urgent interim relief. Regarding the practical approach to mediation in IP disputes within the judiciary, landmark cases have shaped its implementation. For instance, the Salem Advocates Bar Association^[6] case delineated the extent to which mediation can be utilized in disputes including IP matters. Another pivotal case, Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co.^[7], led to the development of Model Civil Procedure Mediation Rules, which have been adopted by the Supreme Court and High Courts throughout India, thereby enhancing the judiciary's capacity to resolve IP-related disputes. In cases such as Bajaj Auto Ltd. v. TVS Motor Company Ltd^[8]. and Bawa Masala Co. Pvt. Ltd. v. Bawa Masala Co. Pvt. Ltd. and Anr.^[9], the courts have underscored the benefits of mediation over litigation, particularly in IP disputes by stating that that in our country, IP disputes carry on for several years and litigation is mainly fought between the parties over temporary injunction. Emphasizing mediation as provided under Section 89 of the Code of Civil Procedure^[10], these judgments advocate for reaching amicable solutions through mediation. The court also stated that order must be followed by all tribunals and courts. Consequently, due to these precedents, the practice of mediation in IP disputes is rapidly gaining prominence in Indian courts.In a recent case, Ericsson v. Intex Technologies (India) Ltd.^[11], there was a patent dispute between Ericsson, a telecommunications giant, and Intex Technologies, an Indian mobile handset manufacturer. The Delhi High Court directed both parties to mediation, which eventually led to a settlement agreement concerning royalty rates for the use of Ericsson's patents. In another significant case, Licensing Executives Society International v. Amul India^[12], which involveda trademark dispute between Licensing Executives Society International (LESI) and AmulIndia over the use of a registered trademark. The Bombay High Court directed the parties to mediation under the Commercial Courts Act, resulting in a negotiated settlement regarding trademark usage and licensing terms.

Challenges & Limitations Of Mediation In Intellectual Property Rights Disputes

Despite mediation being a valuable asset for resolving intellectual property rights (IPR) disputes, it does have several limitations:

1. Suitability for Certain Cases: Mediation may not be appropriate for every dispute. For example, it is not ideal for cases involving unresolved legal questions that need judicial interpretation or for situations where urgent reliefs, such as injunctions, are required. These objectives can often only be achieved through court litigation.
2. Enforceability and Compliance: Settlements reached through mediation are not automatically legally binding unless formalized in a written agreement. This can lead to concerns about enforceability, potentially resulting in further litigation. Moreover, mediation cannot create public legal precedents, limiting its impact on broader legal principles.
3. Requirement for Consensus: Mediation relies on the willingness of all parties to agree and if any party is uncooperative, the mediation process may become ineffective, preventing resolution.
4. Power Imbalance: When there is a significant disparity in resources or bargaining power between the parties, the more powerful party may exert undue influence, leading to an outcome that favors them disproportionately and undermines fairness.
5. Limited Recourse: Parties involved in mediation do not have the option to appeal if they later find the settlement unsatisfactory. This lack of recourse can be problematic if the resolution does not meet their needs.
6. Need for Specialized Knowledge: Intellectual property disputes are often complex and technical. Finding a mediator with the necessary expertise and specialization in IP matters can be challenging, which may affect the effectiveness of the mediation process.

In conclusion, while intellectual property rights (IPR) disputes present significant challenges due to their technical complexity and international nature, mediation offers a compelling alternative to traditional litigation. Mediation's voluntary, flexible, and confidential nature allows parties to craft solutions tailored to their specific needs, fostering a cooperative environment conducive to preserving commercial relationships. Unlike litigation, mediation is generally faster, more cost-effective, and empowers parties to control the outcome. However, it's important to acknowledge that mediation may not be suitable for all cases, particularly those requiring urgent legal remedies or involving significant power imbalances. The increasing judicial acceptance and legislative support, exemplified by cases such as Ericsson v. Intex Technologies and Licensing Executives Society International v. Amul India, highlight its growing prominence in Indian courts. Despite its limitations, mediation remains a valuable tool for resolving IPR disputes, promoting innovation, and facilitating economic growth in an increasingly interconnected global economy.

The author is a 3^rd year Student University School of Law and Legal Studies, GGSIPU, New Delhi. Views are personal.