An Emerging Trend - ADR Mechanism in IPR Conflicts

151 Pages Posted: 1 Jul 2019

Date Written: July 20, 2010

Abstract

India is country habitants having many religion and cultures, since centuries habitants of India has evolved with several forms of dispute resolution mechanisms and over period of time, they have customized, varied according to needs. Even though Britisher’s rulers had left Indian shores almost half a century ago, still several of these laws exist till date without any major changes. Wide Internet usage has rendered boundaries of the states meaningless. The people across the globe have realized its potentiality as an effective tool for communication, dissemination of information and e-commerce and enjoying to unrestricted access to multifarious interactions, transactions inevitably thereby raising many new issues in the nature of e-disputes to virtual sale/purchase of products through e-auctions or otherwise, domain disputes, trademark infringement, patents, software infringement, copyright, defamatory writings, fraud, privacy, etc.

In this scenario the Intellectual Property Rights are becoming fundamentally exigent to get in to research collaborations and thereby making Intellectual property rights tool as valuable business assets for technological entities. The people across world over frequently involve in cross-border transactions having different backgrounds and different national laws or within different states of India. Some time disputable transactions create multi-jurisdictional disputes between the nationalities of different countries having different social backgrounds, mindsets. Usually those business entities having familiarity with alternative dispute resolution (ADR) are able to resolve such conflicts efficiently. As the determination of commercial or non commercial disputes before different national courts can result in to high legal and other costs as well as conflicting awards. Therefore, the ADR has a potential to provide business entities belonging to distinct nationalities a single unified forum of arbitration thereby having a final and enforceable award binding across multiple jurisdictions. Hence, increasingly, IP owners and users are approaching to many of known alternative dispute resolution (ADR) procedures like arbitration and mediation to resolve their IP disputes.

In this scenario the World Intellectual Property Organization (WIPO) has been playing pivotal role since i ts inception in strengthening ADR procedures for IP conflicts and forefront in resolving IP conflicts through their specialized ADR procedures. The Intellectual Property conflicts are not that conflicts which cannot be adjudicated or resolved through ADR. As Intellectual Property conflicts being a specialised in its nature and it require specialised services of ADR experts in resolving IP conflicts, mainly due to non availability of IP experts in India is the main obstacle in resolving IP conflict through arbitration or through ADR.

Thus, like any other emerging field of law, IP conflict resolution also has a plenty of debatable issues before it. In this research paper, It will be my endeavor to delve deep into these issues like amongst mainly i) Whether ADR: arbitration and mediation can be real alternative to IP disputes litigation, ii ) whether IP right disputes like any other commercial disputes can be brought under ADR procedure or not If so, to what extent?. iii) When is ADR to be preferred, when is it to be avoided; and, if ADR is preferred, what form of ADR should be pursued? iv) Whether, an alternative dispute resolution procedure can play effective role in resolving IP conflicts if so to what extent? v) Whether the parties to IP conflicts can reap overall benefits by invoking ADR procedures in comparison to traditional litigation, if so, to what extent? vi) Whether the use of a private consensual mechanism like arbitration or mediation procedures pose any threat to the resolution of such specialised disputes, if so, to what extent?

Keywords: Arbitration ADR, IPR, Trademark, Patent

Suggested Citation

Chaswal, Sanjeev, An Emerging Trend - ADR Mechanism in IPR Conflicts (July 20, 2010). Available at SSRN: https://ssrn.com/abstract=3401259 or http://dx.doi.org/10.2139/ssrn.3401259

Sanjeev Chaswal (Contact Author)

Mewar University ( email )

India

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