Tuesday, 21 January 2014

International Mediation Day: the relationship between mediation and industrial and intellectual property


By Ferran Cornellà
Vía Wikimedia
Since today is International Mediation Day, I thought I would share some thoughts on the role of this type of conflict resolution in the field of industrial and intellectual property (IP).

Mediation used to be identified in Spain with the resolution of family and work-related conflicts. And this remained more or less the case until the 2008 Directive revealed to many that mediation could also serve to resolve conflicts of a civil and commercial nature.

Since then, we have been witness to a legislative process that culminated a few months ago with the approval of Real Decree implementing the Mediation Act of 2012. There is still much to do in this field but we are progressing. In fact, the matter remains highly topical.

But on this day I want to remind everyone of the bodies and individuals who were working on mediation in IP before it became a relevant issue.

I should begin by mentioning the WIPO Arbitration andMediation Center, which celebrates its 20th anniversary in 2014. The Center has been highly efficient in resolving domain name conflicts, but has also extended its activity into other areas, becoming a leading player in the promotion and establishment of mediation in the field of IP.

The Center has not only acted at a broad level in IP but has also sought out specific means to resolve conflicts in the Film & Media, ICT, R+D and technology transfer sectors. WIPO mediation is now an alternative for resolving conflicts regarding DESCA agreements on R+D projects in the EU. Work is also underway to use WIPO mediation in connection with FRAND licenses, and the Spanish collection agencies AGICOA and EGEDA have used its resources to set up their own systems. In addition, the Offices of Singapore and Brazil have implemented mediation systems in cooperation with the Center.

Other bodies in Spain have also used mediation as a tool for resolving IP conflicts. These include Alicante University and specifically UAIPIT, which has held its famous International Congress under Professor Lydia Esteve since 2009, an event that has always featured the subject of mediation in this field. In addition, IE Law School includes mediation in its programmes on intellectual and industrial property, and leading associations in the entertainment sector such as DENAE and foundations such as FIDE have for years promoted and organised training sessions on this subject. Furthermore, the subject has this year been added to the Master’s at Madrid’s Autonomous University.

Therefore, Spain is not lacking defenders, promoters and champions of mediation in this field. I am simply citing those I know and with whom I cooperate, with apologies to the rest, for there are surely many more.

When I discovered it a few years back, I realised that mediation is a highly efficient means of resolving conflicts in this field. With the passing of time I feel the same and even more strongly, after many years of litigation.

Industrial and intellectual property rights have a special nature of their own and the business that surrounds them requires a fast and efficient means of resolving conflicts, which does not scar the relationships between the parties, since IP plays a vital role in many areas of activity, all of them a small world in which the participants frequently cross paths.

Although some voices are in favour of a broad approach to mediation, I still believe that specialization is required, at least in this subject. As I see it, those who work with and are aware of industrial and intellectual property rights are the ones best placed to give the parties what they are looking for: a positive result, an efficient agreement. As time passes and once mediation becomes fully established in Spain, I believe that this criteria will take hold.

In any case, let us celebrate this international day and promote mediation in our daily professional activity. In the end we will all benefit.




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