In many instances, the most expensive way to deal with infringement may be litigation in a court of law that has jurisdiction over the issue, in particular, when IP rights of your SME have been violated by a number of competitors' in the same or different jurisdictions. In the latter situation, your SME would have to enforce its rights in different places before different courts. For this reason, you may want an alternative dispute resolution mechanism - usually "arbitration" or "mediation" - which may be less costly and less time-consuming for your SME. Arbitration generally has the advantage of being a less formal procedure than court proceedings, and an arbitral award is more easily enforceable internationally. An advantage of mediation is that the parties retain control of the dispute resolution process. As such, it can help to preserve good business relations with another enterprise with which your SME may like to collaborate in the future.
Court Litigation or Alternative Dispute Resolution?
Depending on the merits of your case, mediation (or conciliation) and/or arbitration may be a good alternative to court proceedings. These alternative options are, however, generally available only when the dispute over IP rights is between parties to a contract, for example, between a licensor and a licensee, or between joint venture partners, who have agreed to take recourse to mediation and/or arbitration in preference to adjudication in a competent court of law. It is prudent to consider the possibility of a dispute and provide means for its settlement at the time of drafting the original contract. Once a dispute has arisen, it is more difficult and sometimes even impossible to reach an agreement to settle the dispute by mediation and/or arbitration. Your SME may wish, however, to use the option to request the WIPO Arbitration and Mediation Center to contact the other enterprise, with which the dispute has arisen, in order to help the parties to agree to the submission of the dispute to the Center for settlement under the WIPO Mediation, Arbitration or Expedited Arbitration Rules. Often, mediation and arbitration are a very good substitute or at least, in the case of mediation, a less expensive prelude to formal litigation. As part of your business strategy, your SME would be well advised to incorporate appropriate clauses in agreements so that the option of dealing with IP disputes first (and possibly only) by recourse to mediation or arbitration if available.
The WIPO Arbitration and Mediation Center
Amongst a number of institutions that your SME can address for seeking assistance in resolution of its dispute without recourse to court proceedings, the WIPO Arbitration and Mediation Center is one that provides a variety of services for the resolution of commercial disputes between private enterprises, including SMEs. The Center provides services in relation to: