The Role of Arbitration in Intellectual Property Dispute: Protecting Innovation and Creativity
Poonam
Army Law College, Pune
This Article is written by Poonam, a First Year Law Student of Army Law College, Pune
ABSTRACT[1]
The discussion in this research paper revolves around the role of arbitration in "Intellectual Property Dispute", how innovation and creativity can be protected owing to the rise in the promiscuity of intellectual property rights, and the connected disputes for which to some extent the technological advancement is responsible. Sooner people used to adhere to the route of litigation suchwise solve the dispute associated with the intellectual property but slowly and gradually over some time arbitration has supervene as an epochal mechanism for solving all these appurtenant disputes. With confrontation to the litigation, ADR caters to a flexible, efficient, cost-effective, and faster dispute resolution body. This research paper also enumerates the meaning of ADR and its advantages. Furthermore, the paper talks about the role of WIPO in promoting a creative IP ADR mechanism( Intellectual property alternative dispute resolution mechanism ) and even explains the laws that govern the arbitrability of Intellectual property disputes in India. Additionally, at the last, the research paper marks the ending of its haecceity by mentioning the challenges and the consequences that the arbitration might have faced concerning solving or addressing the Intellectual Property dispute.
Keywords
Meaning of ADR, Advantages of ADR, protection of ideas, innovation, and creativity, Role of arbitration in IP dispute in India, Role of WIPO in promoting a creative intellectual property ADR mechanism.
Introduction[2]
It is truly said that society and humans are the name of the change. Forasmuch just like the change in the universe is inevitable likewise the change in the humans and society is inalienable too. Holding the aforesaid statement in mind and the way witnessing the mordant development and advancement in the technology, business sector, and highly competitive environment; likewise, it also propels the elevation in the promiscuity of intellectual property (IP) disputes. Hereinafter, the exigency for effective resolution mechanisms for protecting innovation and creativity flames up. Owing to caters the need to provide significant protection to new creations, inventions, etc i.e. to serve the aforesaid purpose, the IP law came into the picture to protect the creation of the mind like inventions, literary and artistic works, designs, symbols, names, and images used in commerce. Moreover, the exigency of effective resolution mechanisms was effectuated by the Arbitration. Arbitration has emerged as a chief method suchwise to do the allocution of these disputes by imparting enormous benefits over traditional litigation. This alternative dispute resolution mechanism imparts vindication to the parties and handles IP issues like patents, copyrights, trademarks, and trade secrets in a more efficient, confidential, and professional manner. By intruding on the intertwinement of arbitrators having expertise in IP law, arbitration ensures fair, relevant, and informed decisions. Owing to the elevation in confiding upon the intellectual assets, the preface of arbitration in protecting these rights from being infringed becomes unatonable, ensuring that creators and innovators can intercede their benefaction while promulgating a prosperous ecosystem of creativity.
What is the meaning of ADR explain its advantages. [3]?
ADR is to be deemed as Alternative Dispute Resolution, it's a mechanism for extricating disputes in absentia referring to count. It is a medium where parties to the disputes cohere to praxis an impartial third party such wise to vindicate the parties to the disputes to destine to settlement.
1. Single Procedure:-
Resolving disputes over the route of litigation would always steerage to the superfluity of procedure in different jurisdictions and at different levels, which would eventually flame up the mischief of contradictory or impertinent judgment or verdict. On the contrary, If the parties are consenting to extricate their disputes over the ADR mechanism certainly they need to put forth a single procedure to extricate the disputes involving the rights that are protected by several countries. Hereby casting aside, the expense and promiscuity in multi-jurisdictional litigation.
2. Party autonomy:-
Alternative Dispute Resolution (ADR)mechanism offers great unyoked to the parties to choose or control the procedural rules, the applicable laws, the place, the language of the proceedings, advocates, etc, owing to its intrinsical nature. Discrepant in court litigation, where the procedural rules, applicable laws, place and the language of the proceedings are fixed and rigid and, therefore cannot be altered as per the preference of the parties.
3. Neutrality:-
The alternative Dispute Resolution (ADR)mechanism is generally impartial concerning the procedural rules, applicable laws, place, language, and culture of the parties. Ergo, it can therefore obliterate any native court mileage that one of the parties might effectuate concerning the proceedings of the court litigation, where familiarity with the regional processes can impart evincive martial Mileage.
4. Expertise:-
The Alternative Dispute Resolution (ADR) mechanism imparts great unyoked to the parties in solidifying arbitrators or mediators, who have exceptional knowledge and expertise in the ADR, IPR, and the business areas relevant for extricating their dispute or issue.
5. Confidentiality:-
So Far As the Alternative Dispute Resolution mechanism (ADR's) proceedings are intrinsic. Accordingly, the parties to the dispute or issue can encamp to keep the proceedings and results confidential.
This is prominently epochal in the cases of IP disputes where sensitive esoteric information or trade secrets are involved. It even empowers the parties to envisage on the mileage of the dispute without brooding much about its impact upon the public of their reputation.
How to protect[4] Your ideas, innovation, and creativity?
There are a few methods, and by adopting them one can effectuate an edge and protect upon its ideas, innovation, and creativity in the market. These are given below:-
1. Patents
A patent is a right or authorization that the government of a particular country grants such wise render credence of the protection and cease off other companies from manufacturing, selling, or using business design or software or any other creativity.
This assurance can be effectuated by the companies by applying with the Patent and Trademark authority of the particular country. The aforesaid authority bestows the patent to the companies after inquiring about its credibility and Genuity. Once the patent is bestowed, the companies can rescind others from doing opera-bouffe of their invention.
2. Trademarks
A trademark is an epitome or conviction that exclusively is amenable to Precluding a company's product from the market. The things that fall under the ambit of a trademark are shapes, building designs, ornamentation, or even brand taglines. Suchwise to substantiate the master dom of the trademark, it is consulted to use it sooner and subsequently does the expedited filing of the application with the relevant aforesaid authority. After the confirmation of the mark by the authority, the official registration will be granted.
3. Copyrights
A copyright can rescind the opera-bouffe of any writing, artwork, publication, etc. The copyright can be effectuated by the master dom of the creation as and when it is created by applying to the Copyright Office. Copyright laws exist to protect books, pamphlets, any artwork, text, etc.
4. Trade Secrets
The use of non-disclosure agreements in the contract is the best way to protect the intellectual property, ideas, and trade secrets viz. to use the non-disclosure agreements (NDAs). This is a legally enforceable contract to keep the information confidential and not to use such ideas, or trade secrets for the sake of one's benefit. NDA clauses can be used to elevate your ideas to investors, partners, customers, or employees and even to protect trade secrets, such as formulas, processes, or methods, that make your product stand out from the crowd in the market.
What is the role[5] of WIPO in promoting[6] A creative intellectual property ADR mechanism??
World Intellectual Property Organization (WIPO) enumerates the modality for intercontinental corporations in the multiplex intercontinental intellectual property arena. It's an agency under the United Nations that is wedded to bestow the tutelage and privity of global intellectual property. Its execution diversifies massively, from the registration of patents, trademarks, and industrial designs globally to mediation, and arbitration related to intellectual property. WIPO dalliance an epochal role in promoting transnational innovation and artistic creation.
WIPO endeavours diversified Alternative Dispute Resolution (ADR) mechanism options By Dint Of mediation and arbitration. Thereby avoiding sublimate costs and time consumption of court litigation. WIPO ADR currently deals with the following categories of cases:-
a.) Licensing agreements (e.g., trademarks, patents, copyrights, software)
b.) Research and development agreements
c.) Technology transfer agreements
d.) Distribution agreements, franchise agreements
e.) Information technology agreements
f.) Data processing agreements
g.) Joint venture agreements
h.) Consulting agreements
i.) Art market agreements
j.) Digital rights
k.) Television distribution and formats
l.) Film production
m.) Collective copyright management
n.) Cases arising from agreements to resolve
previous court litigation
What are the laws which govern the Arbitrability?[7] Of IP dispute in India??
The array of arbitrability on manifold subject matter is rendered by the verdict of such a country's public policy. So-and-so the outlook towards the arbitration of IP issues transmogrify amongst asunder jurisdictions. Therefore, In India, there is no set-in-stone outlook on the issue of arbitrability of IP disputes, neither from the perspective of statutory law nor from the court's judgment. The relevant laws of IP legislation are as follows:-
1. The Patents Act, 1970 (“Patents Act”) – Section 104
2. The Trademarks Act, 1999 (“Trademarks Act”) – Section 134
3. The Indian Copyright Act, 1957 (“Copyright Act”) – Section 55 read with Section 62
Similarly, even the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) does not endow an accurate list of matters, which are arbitrable. Hereinafter, the aforesaid laws do not render a clear and precise answer to the arbitrability of IP disputes in India rather it shall depend upon a case-to-case basis. A few of the cases are mentioned below:-
1. Vidya Drolia v. Durga Trading Company
2. Booz Allen Hamilton v SBI Home Finance
3. Eros International Media Limited v. Telemax Links India Pvt. Ltd.
Conclusion
There are manifold subject matter upon which the arbitrability can be inclined but in extricating the cases of Intellectual Property disputes, it delineates a substantial preface. This can be authenticated from its faster, rife malleable, and not infrequently less costly process for the parties to intercede in their innovation, creation, and artworks. Moreover, owing to the confidentiality in the arbitration mechanism, it helps in protecting the sensitive significant information by fabricating a rife invigorate environment for arbitration hearing. Additionally, it even tenders to the parties to prune their specialized arbitrators thus ensuring that complex IP issues are handled by experts. Thus encourage the advancement of new ideas, creation, and artwork and eventually indemnify the strengthening of the intellectual property framework.
References
2. https://www.wipo.int/wipo_magazine/en/2006/02/article_0008.html
3.https://www.wipo.int/about-wipo/en/activities_by_unit/index.jsp?id=1012
4.https://cadmus.eui.eu/handle/1814/24559
5.https://lawbhoomi.com/advantages-and-disadvantages-of-alternative-dispute-resolution/
8.https://www.wipo.int/amc/en/center/specific-sectors/ipoffices/
10.https://www.researchgate.net/publication/266000779_Protecting_your_ideas
1. Saba Saif , The Role of Arbitration in Intellectual Property Disputes: Protecting Innovation and Creativity (2024) , recordoflaw.in , https://recordoflaw.in/the-role-of-arbitration-in-intellectual-property-disputes-protecting-innovation-and-creativity/ , accessed 6 October 2024.
2. Saba Saif , The Role of Arbitration in Intellectual Property Disputes: Protecting Innovation and Creativity (2024) , recordoflaw.in , https://recordoflaw.in/the-role-of-arbitration-in-intellectual-property-disputes-protecting-innovation-and-creativity/ , accessed 6 October 2024.
3. Aishwarya Agrawal , Advantages and Disadvantages of Alternative Dispute Resolution (2024) , lawbhoomi.com , https://lawbhoomi.com/advantages-and-disadvantages-of-alternative-dispute-resolution/ , accessed 6 October 2024.
4. Geoff Covey and Andrew Butler , Protecting your ideas , researchgate.net , https://www.researchgate.net/publication/266000779_Protecting_your_ideas , accessed 6 October 2024.
5. Lisa Jorgenson and Carsten Fink , WIPO’s Contributions to International Cooperation on Intellectual Property (2022) , academic. oup. com , https://academic.oup.com/jiel/article-abstract/26/1/30/6955746 , accessed 6 October 2024.
6. Wechsler and Andrea , WIPO and the Public-Private Web of Global Intellectual Property Governance (2012) , cadmus.eui.eu , https://cadmus.eui.eu/handle/1814/24559 , accessed 6 October
7. Pallavi Rao and Robin Grover , Arbitrability of IP Disputes – A Step Forward? (2023) , disputeresolution.cyrilamarchandblogs.com , https://disputeresolution.cyrilamarchandblogs.com/2023/08/arbitrability-of-ip-disputes-a-step-forward/#:~:text=Further%2C%20Section%2034 , accessed 6 October 2024.