Yesterday even out the IPKat attended the INTA roundtable on Alternative Dispute Resolution inwards Trade Mark Disputes, hosted inwards the scenic London offices of Howrey Simon Arnold & White, alongside panoramic views overlooking St Paul’s Cathedral. The give-and-take was led yesteryear Piet Schalkwijk (Akzo Nobel’s Director of Intellectual Property) together with Sir Robin Jacob, soon to induce got his house inwards the Court of Appeal.
Since INTA has established an international Panel of Neutrals for the role of encouraging its members to plough to alternatives to direct litigation, it was non surprising that the ii leaders of the give-and-take strongly supported greater usage of ADR, specially mediation. Piet Schalkwijk described legal disputes every bit “not a battle to locomote won but a occupation to locomote solved”, drawing attending to the rank of emotional interest of parties involved inwards litigation which makes village difficult, quite apart from the fiscal cost. Where direct mediation betwixt the parties failed, “facilitated negotiation” through a trained mediator could ofttimes convey most splendid results. Even where it did not, the mediation procedure could induce got a highly beneficial number upon whatever ensuing litigation yesteryear sharpening the issues which remained to locomote tried.
makes the next observations:
(1) While ADR has much to commend it, many merchandise score disputes may locomote less suited to it - together with specially to mediation - than disputes inwards other areas. For example, inwards actions against counterfeiters together with other infringers, where at that topographic point is no previous commercial human relationship together with no trust exists betwixt the parties, it may locomote unreasonable to await a mediated village to result.
(2) Some merchandise score owners rely on an aggressive litigation policy every bit a fashion of deterring actual or potential competitors from coming likewise some their merchandise marks or merchandise dress. The MACDONALD’S policy of taking legal activeness against almost every tertiary political party usage of the MAC- prefix, irrespective of the forcefulness of the merchandise score owner’s case, is an representative of this policy. Where such a policy is commercially successful it is unlikely that the merchandise score possessor volition merchandise it inwards for a commitment to mediation.
(3) Many merchandise score disputes (for representative opposition hearings) are but likewise modest for the savings which mediation produces over litigation to add together upward to much.
(4) Failed or successful but protracted mediation may itself add together to the overall toll of dispute resolution.
(5) To run properly, mediations should conclude alongside a proper binding contract which determines the damage of the settlement. Failure to exercise together with then tin locomote out the parties alongside big problems, every bit happened inwards the battle between the World Wide Fund together with the World Wrestling Federation for command of the WWF merchandise mark.
More on mediation: INTA Alternative Dispute Resolution here; Centre for Effective Dispute Resolution here; International Court of Arbitration here
Less orthodox ADR here, here, here (rule 7, bullet indicate 8) together with here
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