Arbitration of Intellectual Property Disputes

Sep 4, 2020 | English Blog

Factors such as Globalization, the fourth smart industrial revolution and the emergence of the knowledge society, have made it possible for the economic, technological and scientific growth of States to be largely driven by the creativity and ingenuity of people that inhabit a certain geographic space.

In this aspect, as a way to protect and safeguard the creative and innovative rights of people, is that Intellectual Property Law arises which has as its main objective the protection of “creations of the mind, such as inventions, works literary and artistic, symbols, names and images that are used in commerce ”(WIPO, 2004).

The protection by Public Law of this part of life in society is indisputable, because commercial and industrial activity from the human intellect can generate disputes of various kinds (Montecinos Garcia, 2013), for which it is necessary that adequate mechanisms be created for its resolution.

In this sense, due to its nature and characteristics, intellectual property requires quick and affordable dispute resolution tools, these mechanisms have to adjust to new trends in commercial, social and justice matters, among others. For this reason, Arbitration emerges as an “effective alternative to protect intellectual property” (Montecinos Garcia, 2013).

The World Intellectual Property Organization (WIPO) establishes that arbitration in the resolution of conflicts related to intellectual property rights is being used more frequently, especially when the parties are from different jurisdictions, this is because the characteristics of the controversies on this matter, many times are not regulated by the government justice systems, for this reason, it is necessary to resort to alternative dispute resolution mechanisms.

Arbitration is currently one of the alternative methods of dispute resolution. This, due to the advantages it offers, therefore, has become the most ideal method to resolve disagreements arising from commercial activities (Guízar, 2016).

However, despite the fact that arbitration is a common practice in international trade, it has traditionally been less used in intellectual property (IP) disputes. This may be due to various factors among them, the concepts of territoriality and national sovereignty deeply rooted in IP, ([World Intellectual Property Organization] WIPO, s.f., p.1).

But this has changed, since, for many companies, Intellectual Property has become their fundamental asset and a mean to create value. P.I. it is increasingly exploited internationally through various forms of collaboration agreements, such as licenses, technology transfer agreements, and research and development agreements. It is for this reason that the parties involved constantly seek methods of solving their disputes that are tailored to their needs and realities, private procedures that offer mainly flexibility, to resolve international conflicts without their activities and commercial relationships being affected, (WIPO, sf, p.1).

For this reason, the World Intellectual Property Organization, WIPO, offers the parties, through its arbitration and mediation center, the figure of Arbitration, as a mechanism for the settlement of disputes of an international nature, so that they can resolve their conflicts without the need to resort to the judicial route, upon agreement between the parties to submit their differences to an arbitration process.

In this sense, the arbitration procedure for Intellectual Property disputes is clearly established in the WIPO arbitration regulations, where in addition to the procedure itself, the costs are established according to the service requested by the parties.