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Arbitration and IPR Disputes

Intellectual Property Rights (IPR) are exclusive rights given to creator for use of his/her creations for a certain period of time. Exclusive rights are given to use own ideas, plans, intangible assets etc. These rights include categories as copyright, trademark, trade secret, patents. As law or statute protects ownership over property (real estate), Intellectual Property Law enforce legal rights over intellectual property of creator. These rights are exclusively given to creator as protection as well as in worry of competition. This article deals with the enforcement of law over matters of Intellectual Property Rights.

Association between IPR and ADR ( Arbitration, Mediation):

To enforce the Intellectual Property Law to resolve the dispute over intellectual properties, it's broadly enforced in wide areas as Mediation/ Arbitration and Litigation. In light of till the date disputes solved in IPR cases it can be inferred that often Litigation is always considered as a meritless option, and more of Mediation/Arbitration is used as method to resolve the dispute. Intellectual Properties are considered as properties owned by the creator, whereas disputes of properties (here real property as real estate, land) are resolved by the litigation but dispute of intellectual properties are mostly distracted by the Litigation, the reason is, in IPR disputes enforcement is carried mostly to carry out competition rather than of protection of those exclusive rights.

Here not absolutely criticising the method of Arbitration despite it's a favourable option as it avoids litigation as well as court dates rather solves it by the discussions, but method to be imposed to carry out competition not a mere protection of exclusive rights. Multiple lawsuits, litigation, court hearing could be avoided by the help of Mediation/ Arbitration. Thomas Gergen describes Mediation as effective method to reach an agreement to settlement of the settlement of their disputes with the assistance of mediator. Mediation is more advantageous than litigation as its quick resolution (speedy settlement) without any legal or factual damages to any disputed party.[i]

Merits of ADR in IPR disputes:

While answering to a particular answer for need of arbitration in intellectual property rights referring to particular view point of World Intellectual Property Organisation (WIPO) that at international level arbitration helps to avoid proceedings with multiple laws, statutes and acts and advantage to particular party owing home laws and home judiciary while arbitration remains neutral and confidential.

According article 3 of the convention establishing WIPO its states that disputes between parties must be solved by cooperation among themselves, here concept of Arbitration suits properly. In litigation there is possibility where amount or gravity of damages are decided by the court or court grants damages/ compensation in specific terms, whereas in arbitration parties can decide damages by mutual consent which makes possibility of satisfaction of both parties.

In advantages of choosing arbitration or mediation every case is treated as a separate as there is absence of precedents which may affect on the results of the case. In the alternative dispute resolutions where disputes are solved or directed to solver other than the means of the litigation or the court procedure because in the process like mediation where inclusion of law is not permissible or permissible by the approval of mediator because in these particular matters if court would have interfered then possibility that justice may not be accomplished or court have to go contrary to the law, in the cases of IPR there may be possibility that to maintain the nature of the law court may not give a justice to the party hence its always to have good option to make Mediation/Arbitration on the disputes of the Intellectual Property Rights. [ii]

International Jurisdiction:

Emergence of Arbitration is not wide in every country, and it tends to follow judiciary as explicit and exclusive to resolve disputes. Due to which it is seen in the international jurisdiction that every country does not allow IPR disputes for Arbitration and also do not put a blanket bar and order to avoid the Arbitration. In India itself, whether to follow Arbitration in IPR is always seen as obiter dictum from the court.

The expedient rule should be that Arbitration in IPR disputes should be present in the partial form. The matters arising from breach in contractual obligation of IPR should only directed towards Arbitration. Whereas, matters of validity, registration, statutory limits should not be directed towards Arbitration as their nature is determinable and statutes, laws are compatible to deal with the matters. [iii]

Matters of IPR should be directed to Arbitration only where issues are aroused from contractual obligations where circumstances are as 1-judiciary is not able to solve matter by available laws and statutes, 2-in cases where one party is gaining more/ less advantage, 3- Settlement is only an alternative. The scope and extent of admissibility to IPR disputes should only be limited to the cases of Rights in personam ( rights enforceable against individual) and not admissible to issues/ disputes of Rights in rem ( rights against whole world.) [iv]

Exceptions and their presence:

I felt that apart from all merits discussed above, I found very few exceptions for it as arbitration or mediation needs to have mutual co-operation between parties to solve a dispute, but often disputes arising out of IPR is between companies and corporates and in the era of the trade war, competition in corporate sector it is very low possibility to have cooperation between companies and corporates as in the arbitration/ mediation to solve IPR disputes parties will more concerned about money or their prestige in the market and neglect to have a co-operation.

Still even these defects are not serious in the today's nature as many parties (corporates, companies) are aware that without mutual co-operation possibility that both the parties may felt loss or even fail to maintain their prestige in the market, and so parties will become flexible to solve dispute which is necessary to solve disputes in arbitration/ mediation. hence still the option of the arbitration/ mediation becomes effective in the nature.

If we consider the international stand regarding the IPR disputes and Arbitration, it could be seen that there are diverse stands regarding adoption of arbitration in IPR disputes but still WIPO and other countries which truly believe in this method are taking steps forward to solve these disputes efficiently, as we know nowadays trade, business at international level is growing at very fast, and issues of IPR are also arsing that speed so at every level and from every country adoption of arbitration to solve IPR disputes is a modern need.[v]

End-Notes:
  1. https://www.wipo.int/amc/en/arbitration/why-is-arb.html
  2. https://www.mondaq.com/india/intellectual-property/43996/mediation-of-intellectual-property-disputes
  3. https://www.barandbench.com/columns/resolution-of-disputes-involving-ipr-through-arbitration-in-india
  4. Booz Allen and Hamilton vs SBI finance.
  5. http://www.legalserviceindia.com/legal/article-360-arbitration-and-intellectual-property-rights.html

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