Intellectual property assets are focal components of the contemporary information economy. In this manner, it is basic that they are overseen proficiently and to do as such, the choice of dispute resolution must be unmistakably explained. Although an Intellectual property dispute can be settled through a court case, intervention, mediation or other alternative dispute resolution (“ADR”) techniques are as often as possible depending on as ADR is suitable for a most intellectual property dispute.
An alternative dispute resolution is an alternative mechanism including several procedures and techniques for the disagreed parties for allowing them to resolve their dispute, which is done in the assistance of talented and qualified non-biased intermediaries. ADR can also be referred to as settling disputes outside the courtroom. Alternate Dispute Resolution (ADR) began in the USA as an undertaking to find differentiating choices to the customary lawful framework that was seen as poorly arranged, exorbitant, erratic, firm, over-professionalized, harmful to connections, and obliged to constrain rights-based cures as opposed to innovative critical thinking. The American foundations of the thought are not bewildering, given certain features of the case in that framework, for instance, trails of basic activities by a jury, legitimate counsels’ possibility costs, nonappearance of utilization in loaded with the control “the failure pays the costs”.
TYPES OF ADR AS MODELS FOR USE IN BANTER REDRESSAL EXIST ON THE NATIONAL LEVEL
- Tribunals, commissions, sheets, and so forth.
- Lok Adalat
- Fast Track Courts
Article 323-B was added to the Constitution to support the administering body to develop tribunals, commissions, locale sheets, etc., for the settling or preliminary of any debate, complaints or offences concerning any issues.
Lok Adalat or the People’s Courts, pick the inquiry with generally extraordinary undertaking to land at an exchange of or settlement on the reason of principles of equity, value, reasonable play and other legitimate guidelines. The times when the Lok Adalat can’t meet up at a deal or settlement, the record of the case is returned to the Court, which from the outset implied the case to the Lok Adalats. The Lok Adalat is coordinated by a sitting or surrendered legitimate official as the director, with two different people, generally an attorney and a social worker
Arbitration is an ADR procedure where the parties present contentions and proof to a third party, the arbitrator, who makes an assurance. Arbitration is especially valuable where the subject matter is exceptionally specialized, or where the parties look for more confidentiality classification than in an open court.
A mediator is an ADR procedure where an independent third party, the mediator, helps in assisting the parties to recognize the contested issues, create choices, think about other options and attempt to agree.
An ombudsman provides alternatives for individuals with concerns, including whistleblowers, who try to present their interests securely and successfully.
The Eleventh Finance Commission recommended a plan for the development of 1734 Fast Track Courts (FTCs) in the country for fast transfer of the pending cases. Fast track Courts are proposed to quickly free the epic size from pendency in the territory and subordinate Courts under a period bound program.
Mediation is a process of settling the dispute between the disputed parties over their agreement by an independent third person where that third party would act as a judge. It is informal out of court way of the settlement but the third person does not actively participate in the discussion. It is also much cheaper than paying in court for the same dispute and end the dispute without much anxiety.
The law and practice of private individual transactional commercial disputes without even approaching to court are seen in India since ancient times. Mediation as an Alternative Dispute Resolution by municipal courts has been prevalent from Vedic times.
Various types of arbitral bodies viz
(i) the Puga
(ii) the Sreni
(iii) the Kula.
These arbitral bodies, known as Panchayats, deal with different variety of disputes, like contractual disputes, matrimonial disputes and even of a criminal nature. The parties would have to accept the decision of the Panchayat being a binding decision and had a legal obligation.
PRINCIPLES OF MEDIATION
There are following five basic principles of mediation due to which people usually chose mediation over litigation.
- Parties participate voluntarily:- It’s on parties’ consent that they want to go for mediation or they want to approach the court. Parties give their participation voluntarily in the process that’s why the end of the discussion mostly comes out to be very fruitful. In these parties leave the discussion at any time which they cannot do if their dispute is in court.
- Confidentiality is maintained in the whole process:- In Mediation itself the mediator must not uncover any confidences that are imparted to them except if offered consent to do as such. Except if somebody shares a criminal intent or act that includes mischief to self or others.
With the end goal for individuals to have a sense of security to investigate their feelings of trepidation and tensions, the procedure must be seen to be completely confidential.
All the data given in the mediation will be kept private and it can’t be utilized in the court procedures neither by the middle people nor the court can inquire as to why the mediation didn’t work.
- Non- biased and independent mediators:- The mediator must act unbiasedly and impartially. He/she ought to watch all principles of mediation and think about matters of the method. He/she ought not to remark, esteem decisions, nor offer guidance or recommending arrangements. Un-biasness of a mediator ought to guarantee that the gatherings acknowledge him/her as an individual who is genuinely committed to settling the contest and who favours the two sides in the question, looking for arrangements that would fulfil the two sides in the debate.
The go-between must remember that his/her conduct, disposition, and some of the time the procedures of intercession can bring a feeling of compassion towards one side. At the point when that occurs, at that point, the mediation went the incorrect way. The go-between can’t play out the capacity if there are conditions that show questions about his unprejudiced nature and objectivity.
- An agreement is settled with both the concerned parties’ consents.
A mediator can intrude on mediation if he/she feels that gatherings get some distance from the arrangement or that are much more restricted than they were toward the beginning of the mediation. The essential standard during the time spent mediation is that the mediation technique ought not to hurt the gatherings at all, yet to add to the goals of their contest.
Given that mediation is just an enhancement to the court procedures, it must not keep a gathering from practising the privilege of access to court and utilization of judicial protection.
- Mediation is without prejudice to other procedures.
Significantly, individuals claim all right to invoke different measures. If the mediation was viewed as an implemented strategy or one that expels a person’s privileges it would tighten the creativity and builds the potential for obstruction.
Intellectual property rights are the rights given to any person over the creation of his minds like some inventions, literary and artistic works, designs, symbols, names and images used in commercial purposes. This exclusive right is usually given to creator over the creation of the above mentions’ things for a specific period.
IP is protected under law by, for example, patents, copyright and trademarks, which enable people for recognition or financial benefit from their invention or creation. The Intellectual Property system aims to create aa healthy environment in which creativity and innovation can flourish. Intellectual property is usually not tangible. Theses rights are set for controlling the ownership, use and sale items created through the use of any person’s creations or inventions.
There are mainly four types of intellectual property:
- Copyright- Include writings, musical recordings, films, play and other creative works.
- Patents- Include inventions, other mechanical and technical innovations.
- Trademarks- Include logos and slogans, used to identify goods.
- Trade secrets- Consists of recipes, instructions, productions methods, and the information which is not readily accessible by the mass.
INTELLECTUAL PROPERTY DISPUTES
The most common type of IP dispute is Infringement, where the property is used or appropriated by any other person other than the owner’s permission. Infringement can be applied to many categories of intellectual properties like copyright infringement, patent infringement and trademark infringement. Some common ways by which infringement an occur are-
- Using the logo for one product on another product of the same nature as the first product.
- Creating a logo or utilizing trade dress a way that is proposed to make buyers think they are buying an item that is equivalent to the original item
- Making duplicates of musical recordings, films, and other media and conveying them for benefit without the copyright proprietor’s assent
- Manufacturing a patented thing by following the particulars recorded in the patent without having a permit from the patent proprietor.
Ip disputes can also occur through corporate espionage, such as bribing an employee of a company which competes to disclose the competitor’s secret client list. Also, the IP dispute can arise when a producer of a goods or service starts believing that their product is protected under Ip laws but in reality, it is not. Therefore, it is very important to manufacturers and producers to get their products register and carefully ensure that they receive protection for it.
NEED FOR PARTIES’ IN IP DISPUTES
Parties in intellectual property disputes seek the following areas through which the matter could be sorted out.
- Parties wish to get their dispute to be sorted out by speedy resolution
- Parties’ matters include most important and technology transfer contracts so that’s they need fully confidentiality in their resolution process.
- Parties want their relationship to be fully preserved or enhanced.
- Parties seek for full control over their settlement process so that it could be on parties’ will, whenever they want to leave the settlement process they can.
- Parties seek different ways to claim all their rights in the dispute.
ADVANTAGES FOR SEEKING MEDIATION FOR IP DISPUTES
There are following advantages of seeking mediation for IP disputes:
- Single Procedure- Court trials in international Ip disputes can be done with multiple procedures also may give inconsistent result. Through mediation, parties have an opportunity to resolve their disputes in a single procedure by avoiding the expense and complexity of multi-jurisdictional and different procedural court litigations.
- Party autonomy – In mediation parties have a chance to decide between themselves how they want to get their dispute resolved. There is no compulsion of using a traditional way of litigation.
- Neutrality- Mediator acts as an independent umpire. He does not fall for any party and neither of the party can feel the mediator being biased in the procedure of settlement of a dispute.
- Expertise- The best part of this is that parties are free to choose their mediator who is expert in his field.
- Confidentiality- The prime aim of mediation is to maintain confidentiality and then resolve the dispute. It is important to give immense respect to parties’ secrecy and confidentiality.
For a successful implementation, there is constantly a need for procedures and strategies. the mediation process is now and again utilized by people in general yet implementation is absent. More mediation places must be set up by High courts and a specific faction of cases ought to be providing for the mediation by courts.
The improvement of mediation as a reasonable option in contrast to a case is still in the nascent stages in India. Mediation centres’ have as of late been set up by a couple of industry and trade associations. Likewise, proficient legal advisors have in certain detached occasions endeavoured to form into full-fledged experts with ability in mediation.
These occasions are, nonetheless, irregular and the general capability of mediation despite everything stays to be explored. Procedures for fruitful execution of mediation must be deliberately evaluated and a cognizant exertion must be made towards the development of a procedure that will be adequate to the general public on the loose. In accomplishing an elevated level of worthiness for the mediation procedure, a few issues need be engaged upon and these include:
- Developing awareness;
- Building capabilities;
- The production of an institutional structure; and
- Actual implementation
Mediation is the most liked option to help many parties to get away with their disputes with fast resolution and at a cheaper rate. Mediation with its non- adjudicative and constructive methods helps the commercial bodies in creating new opportunities to co-exist and to extend their respective businesses. Leaving an open field for many possibilities for the future without disabling one or both the parties indirectly. In India mediation is at a very early stage. It is getting recognized nowadays only but if we look at the success rate of mediation process it can be said turn out to be a very fruitful dispute resolving Ip disputes in the coming new years.
V.A. Mohta& Anoop V. Mohta, Arbitration, Conciliationand Mediation 532 (2008).