There are many popular methods of intellectual property dispute resolution, including negotiation, arbitration, lawsuits in court, online dispute resolution, bilateral solutions to find a suitable solution, consistent with the interests of all parties. The following article will show an overview of current popular methods of intellectual property dispute resolution.
Current popular methods of resolving intellectual property disputes
Current popular IP dispute resolution methods have their own advantages and disadvantages and are suitable for different dispute situations. Basic characteristics of popular methods of intellectual property dispute resolution include:
- Negotiation: This method is often used when two parties can reach an agreement on the reasonable sharing of intellectual property rights. The parties can negotiate to settle the dispute satisfactorily and come up with a contract or agreement between the two parties.
- Arbitration: This method is when two parties agree to resolve the dispute through an independent arbitrator. The arbitrator will hear all evidence relevant to the dispute and make a final decision. The arbitrator’s decision is binding and must be followed, but may be weaker than the court’s decision.
- Litigation in court: This method is when two parties bring their dispute to the court for the court to decide. The court will consider the evidence relevant to the dispute and make a final decision. Court decisions are binding and must be followed.
- Online dispute resolution negotiation: This method uses information technology to resolve disputes. Parties can participate in online negotiation sessions, run by a negotiation center. This process requires the participation of an online arbitrator to resolve the dispute.
- Bilateral solution: This method, also commonly known as a two-way agreement, is when one party makes an offer to the other, providing a reasonable and satisfactory solution to the dispute. The other party can accept the offer or make a new one. If the parties agree to the proposed solution, the dispute will be resolved.
Perspectives on the method of resolving intellectual property disputes through arbitration
Existing intellectual property disputes in Southeast Asia in particular and in the world in general are now gradually being chosen by many parties to be resolved through arbitration because of the advantages of this method of settlement, which are convenience and beneficial for the parties.
Southeast Asian regions that make the most of the arbitration of intellectual property disputes include Singapore and Hong Kong. In addition, on the world scale, other countries that have shown great success in applying this method are the United States, the United Kingdom, Canada, and Australia.
Not only the arbitration method within the country, but many international organizations such as the World Intellectual Property Organization (WIPO) have also provided international arbitration services to resolve intellectual property disputes, which can be between parties within the same or different countries.
When parties use arbitration services to resolve disputes, the disputing parties will refer their issues to an independent and objective third party (arbitration) for resolution. The arbitrator will listen to the parties and make decisions based on the law and available evidence.
Several types of arbitration can be used to resolve intellectual property disputes, including:
- International Arbitration: International arbitration is a popular option for resolving cross-border disputes, especially in the field of international trade. Many countries have established specialized organizations for international arbitration, such as the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA).
- Domestic arbitration: Inland arbitration is of a territorial or regional nature and is used to settle disputes between parties in the same country. Domestic arbitration can be governed by national law, state law (USA) or even institutional rules.
- Ad Hoc Arbitration: Ad hoc arbitration refers to arbitration that is not administered by a specialized organization. Ad hoc arbitration is often used when the parties do not agree to use a specific organization or when the dispute is so small that it is unnecessary to spend too much money using the organization’s arbitration services.
- Institutional Arbitration: Institutional arbitration refers to arbitration administered by a specialized organization, such as the ICC or LCIA. Institutional arbitration provides a formal framework for the arbitration process and typically includes rules for selecting arbitrators, conducting arbitration, and enforcing awards.
In addition, the classification of types of intellectual property dispute resolution through arbitration can also be classified into fixed arbitration and independent arbitration depending on the contractual nature of the two parties and the contractual terms agreed by both before the dispute broke out.
Independent arbitration is an arbitrator chosen independently and freely by the disputing party. The final decision of this arbitrator is binding on both parties. Independent arbitration is often chosen in disputes that are complex and require high expertise.
Fixed arbitration is the type of arbitration specified earlier in the contract between two disputing parties. This arbitrator can be an organization, an individual or a group of people authorized to resolve disputes according to a defined process. Fixed arbitration is often chosen in simple disputes, with its unambiguous nature and well-defined dispute resolution process in advance.
Perspectives on methods of resolving intellectual property disputes through courts
The method of resolving intellectual property disputes through the court is the process of resolving disputes between the disputing parties through the legal system and regulations prescribed by the legal system of the country. During this process, the disputing parties will present evidence and arguments to prove their ownership rights, interests, and claim for damages related to their intellectual property rights.
The steps in the process of resolving intellectual property disputes through the court include:
- Submission of a Dispute Settlement Request: The party requesting a resolution of the dispute shall submit a request to the court.
- Arguing and giving evidence: The disputing parties will present arguments and evidence to prove their intellectual property rights.
- Examination of evidence: The court will examine the evidence presented to make a decision on the matter in dispute.
- Making a decision: After examining the evidence, the court will make a decision on the dispute.
- Appeal and reconsideration: If any party is not satisfied with the court’s decision, they can appeal or request a review of the decision.
The method of resolving intellectual property disputes through the court has advantages such as ensuring fairness, clarity and transparency in the dispute settlement process. However, using a dispute resolution service through a court can be costly in terms of time and money when nearly every court in the world is currently overwhelmed with the number of cases.
In addition, court decisions can be appealed or modified, leading to difficulties in applying and enforcing those decisions, leading to further prolongation of time when both parties want to resolve intellectual property disputes as quickly as possible.
However, in general, the binding of court decisions is stronger than that of arbitration, which must be complied with by the parties involved in resolving intellectual property disputes and thereby, the parties can tend to be more obligated to comply with legal court decisions.
If any party does not comply with the court’s decision, the other parties can ask the authorities to protect their interests by taking legal measures. In addition, if any party violates the court’s decision, they may also be fined and liable.
However, enforcement of a court’s decision may also be restricted in certain circumstances, for example when the disputing parties are of different nationalities or when the court’s decision is not recognized in some jurisdictions.
Thereby, depending on each case, the parties will need to draw up a reasonable plan to protect their intellectual property rights, whether it is arbitration, court or bilateral agreement, etc.
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