Protecting your Intellectual Property “IP” with Mediation
Your IP includes your trademarks, product and service designs, supply chain and staff contracts, personal data, and customer records. It adds up to more than 50% of the real value of your business so it’s worth protecting. However what if other businesses can access and gain control over your IP? Let’s look at a few common issues and how you can manage them.
Your trademark is your company brand name and associated graphic insignia, motto or logo. Third parties often share confusingly similar names or logo designs. As a result enquiries about your products or services can go to third parties, causing loss of business. This can be prevented by first checking IP registers and online search engines, then contacting the third party to mitigate risks. By taking a non-adversarial approach you can agree a co-operative sharing of the IP and even register co-ownership.
Another common issue is a Google adword with your name being purchased by your competitors to purposefully misdirect your online enquirers to themselves. If these words are registered by you at the IP Office it is simpler and faster to mediate directly with the competitor to avoid recourse to legal action and, more importantly, quickly stopping your enquiries going to competitors.
A third common issue is staff leaving your business to join a competitor. They often take with them a detailed knowledge of your customers, systems and products. A competitor can take advantage of this at your expense. A qualified IP mediator can prevent risk of loss by adding confidentiality terms to your employee contracts and improving the exit interview process to deter future disclosures.
Finally, your bids for new work may be copied out by buyers to competing firms to obtain better prices or terms. Your proposals may contain confidential and proprietary information on your prices, suppliers, and quality management processes. An IP mediator can advise you how to prevent such key data being shared by buyers and prospective customers.
It all adds up to protecting your profits, your reputation and your unique selling points. It’s worth checking your mediator has IP qualifications, and if your IP attorney is a qualified mediator. Prevention is better than cure, but if it’s too late for prevention then the cure may not need to involve costly adversarial legal eagles.
International Chamber of Commerce ICC Intellectual Property Roadmap
“Despite the fact that many more disputes are now capable of being submitted to arbitration, some intellectual property disputes cannot be legally resolved by arbitration because they relate to a subject matter that cannot be removed from the normal national court jurisdiction. This is because, in most countries, the existence of an intellectual property right (with the exception of copyright) requires intellectual property owners to register or apply for the right with a governmental or inter-governmental agency that has the power to grant, amend or revoke the right and determine its scope. Therefore, disputes directly affecting the existence or validity of an intellectual property right are not arbitrable. This is most obviously the case with the validity of a patent that is issued by a patent office, the only competent authority outside a court in which to challenge the patent’s validity.”
CURRENT LANDSCAPE | Mediation’s relevance and acceptance as an effective dispute resolution method has significantly grown in the last 20 years. Currently, courts in most countries will make sure to give effect to a mediation clause and will uphold the parties’ final agreement ensuing from a successful mediation. Further, a number of institutional rules on mediation, such as the ICC ADR Rules, are available and well-suited to intellectual property disputes. Awareness of mediation has also spread rapidly among business parties, due to many mediation conferences such as the annual ICC International Mediation Conference, which is tailored to the needs of corporations. As a result, commercial parties have steadily but surely been trusting mediation for the resolution of the commercial disputes, including IP disputes.