Trademark and Copyrights—two words, the thought of which can give any business a nightmare. Getting a trademark or copyright in itself is one of the biggest legal mess for any business. To top that, if a business is required to get into a legal battle to protect their trademarks and copyrights—it may shake the entire existence of the business itself. It took seven years for an automotive giant like Toyota to win their Prius trademark battle in India. Many leading domestic and global brands in India have entered into a scathing trademark/copyright legal battle at one point or another—Tata, Bata, Burger King, Pizza Hut, Horlicks, Benz, Cartier, Calvin Klein, Usha, Mahindra & Mahindra, Amul,—the list is virtually endless. Despite having a plethora of legal and financial resources at their disposal, even these ‘Fortune 500’ companies dread such legal battles. The case is even worse for smaller companies—who may lose all their assets in fighting such decade-long battles.
In such a scenario when Indian courts are already over-burdened innumerable cases, mediation provides a quicker and cheaper way for parties to resolve trademark and copyright issues. Mediation is very actively used in the Western world to resolve complex trademark and copyright issues. Especially in cases where the subject is highly complex and technical, parties can seek a mediator with knowledge of the relevant law, subject-matter or technology—which may not be otherwise possible in the conventional legal system. In such cases, the mediator can narrow down the issues by providing clarity on technical aspects—thus saving time and money. Even if early mediation does not result in a dispute resolution, it may help in narrowing down the issues, thus expediting the process when dispute reaches the court of law.
The overall process of mediation is less risky than litigation—saving time and money for both the parties, as well as the judicial system of the country. The potential savings in lawyer’s fees and other litigation expenses are significantly higher in mediation in trademark/copyright cases because such costs are often prohibitively high in these cases.
Mediation typically aims to establish a win-win situation for both the parties rather than giving a one-sided decision. This ensures that a suitable relationship is maintained between the parties even after the final decision is made. This becomes more important in cases where the parties have had a long-term relationship in the past and do not intend to jeopardize it amid a legal battle.
Mediation provides a level of flexibility that cannot be expected in the judicial system. Further, the private nature of mediation ensures there is no breach of confidential information which is very well possible when a case is tried in regular court.
International Trademark Association
According to a survey by the International Trademark Association, mediation settlement rates for intellectual property disputes are as high as 70%. Despite this and other advantages mentioned earlier, the adoption of mediation remains limited in India. This is primarily driven by factors such as no real effort by the courts or by the lawyers to utilize the provisions of Arbitration & Conciliation Act, 1996 and encourage the litigants to choose the method; doubt about the validity of such a settlement as compared to a court decree; unavailability of Internationally trained Professional Mediators. Even though some mediation training and familiarization programs were conducted it did not create the real effect.
Adoption of mediation
In order to increase the adoption of mediation in the country, the government should take serious efforts to increase awareness about the process. This will automatically overcome most of the aforementioned issues. Once it is understood that mediation is intended to complement (not replace) the judicial process, that it is highly adaptable to different contexts, and that expertise in India is already growing rapidly, the apprehensions may quickly dissipate. This may be done by conducting workshops, holding conferences among corporates, and even encouraging lawyers to go for mediation before coming to courts. At the same time, we should also start working towards making the entire mediation ecosystem more robust and effective. This can be done by training and developing effective mediators and providing the required infrastructure.
Mansi Jain Garg, India
Faculty of Law
Jamia Millia Islamia University, Delhi India.