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Mediation in Intellectual Property Disputes

Intellectual property has a unique nature since it safeguards the rights of owners of intellectual output in an age of rapid and excessive information access. Consequently, most disputes concerning intellectual property are distinct as they need scientific knowledge and a problem


Intellectual property has a unique nature since it safeguards the rights of owners of intellectual output in an age of rapid and excessive information access. Consequently, most disputes concerning intellectual property are distinct as they need scientific knowledge and a problem-solving-oriented attitude. Therefore, litigation is not a suitable option for most of these disputes. This article highlights how the alternative dispute resolution technique of mediation will prove to be extremely beneficial, not only to businesses but also to the judicial system, if utilised more extensively for resolving intellectual property disputes.  

Intellectual property (referred to as “IP” hereinafter), now ranks among the most precious resources in the worldwide economy. The global market’s reliance on modern technologies has grown manifold. The worth of the intellectual work of the authors of intellectual property is determined by rights attached to the owners’ creative and intellectual product.[1] Intellectual property protection enables the creators to impose their authority on anyone who, without their consent, attempts to exploit his creation. Intellectual property is intangible, and unlike traditional property, it is worth does not reside in the individual’s ownership of the item. Intellectual property is valuable due to the owner’s exclusive usage and licencing rights. Since intellectual property is fundamental “information,” it is now extremely difficult to safeguard in the present world’s economic system, where information movement, as well as connectivity, have achieved unimaginable degrees of complexity and availability.[2]

Inadequacies of Intellectual Property Litigation

The owners of intellectual works must act as their protectors and resort to the courts when their rights are violated. Numerous intellectual property conflicts result in long-drawn and costly litigation,[3] which overburdened judicial systems like that of India struggle to handle. In “Bajaj Auto Ltd. v. TVS Motor Company Ltd.”,[4] the Indian Apex Court states that IP disputes in our country can last for years and that most lawsuits are over temporary injunctions.

Cases involving patent law, which need a grasp of scientific and technical understanding, require specialised adjudicators who can appreciate the multidisciplinary character of the case with relative clarity. Furthermore, the exact judgement or order of the judicial procedure may not always represent the parties’ actual interests.[5] Therefore, it is contended that alternative dispute resolution mechanisms must be explored and utilised for such matters.

 Mediation and its history in India

Mediation can be defined as a voluntary, legally binding alternative dispute resolution mechanism in which a “mediator” that is impartial and neutral helps the individuals involved in the dispute to come to an agreement. It is a structured method in which a third party uses specialised ways of conversing with individuals and negotiating. Any settlement is documented in a contract that can be enforced.[6]

The mediation technique was incorporated into the “Code of Civil Procedure, 1908,” which was amended in late 1999 by adding Section 89(2)(d),[7] which gave courts the power to order disputes to be settled through mediation and other means. This prompted the enactment of the “draft Civil Procedure – Alternative Dispute Resolution and Mediation Rules 2003.” The recent addition of Section 12 A to the Commercial Courts Act of 2015[8] is a very significant one. These changes made mediation a requirement before a suit could be filed.

The work of the judiciary in this regard is also commendable. In “Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P.) Ltd,”[9] the Apex Court of India ruled that all cases involving “trade, commerce, contracts, consumer disputes,” and even torts could usually be solved through mediation.

Mediation as a mechanism for intellectual property disputes

According to past observations, intellectual property disputes often result in a settlement. Mediation is a successful and economical means of attaining this outcome while protecting and, at times, even increasing the connection between the parties.[10]

Mediation is an ideal alternative for parties that prioritise preserving or enhancing their relationship, want to keep control over the dispute resolution process, value secrecy, or desire to achieve a quick settlement without incurring reputational harm. When a disagreement ensues, parties to contracts concerning the exploitation of intellectual property usually have these objectives. Prominent examples include patent, and trademark licencing, franchise agreements, etc.[11]

In intellectual property conflicts, mediation is problem-solving rather than right-determining. The fact that mediation focuses on problem-solving rather than individual rights is fundamental to its efficacy in conflict resolution. Since mediation is nonbinding and private, it entails minimum risk for the parties and yields substantial advantages. In fact, one might argue that mediation can never lead to any sort of losses to the parties since it forces the parties to clarify the contentions, issues and problems of the discord between them, so creating the stage for eventual arbitration or court actions, even if no settlement is reached.

Recent Use of Mediation In Resoling IP Disputes

The “Controller General of Patent Designs and Trade Marks”, into joint effort with the “Delhi Legal Services Authority (DLSA),” directed around “500 pending oppositions and rectifications in the Trademarks Registry (TMR), Delhi, to mediation and conciliation” through a notice[12] in 2016, under the “Legal Services Authority Act.”

In a precedent-setting decision, “Bawa Masala Co. v. Bawa Masala Co. Pvt. Ltd. and Anr.,”[13] wherein ADR had been used to settle several legal disagreements, the High Court of Delhi issued directions to employ a mechanism referred to as “Early neutral evaluation,” in an IP lawsuit. The court in this instance argued for the incorporation of such methods for the peaceful resolution of conflicts under section 89[14] of the Civil Procedure Code of 1908.


 Litigation is suitable for the enforcement of regular legal rights. The formation of numerous quasi-judicial organisations for dealing with various IP laws indicates that these entities were established in order to distribute the workload as well as provide professional acumen in determining IP rights in disputes. The violation of IP rights, being an inter-party conflict, may be resolved quite effectively via mediation. Even in cases when alternative dispute resolution procedures are ineffective for resolving conflicts involving intellectual property rights, they may be utilised to restrict the grounds for contestability in conventional litigation methods.

Author(s) Name: Prerita Bhardwaj (Symbiosis Law School, Pune)


[1] Madhu Sweta, Alternative Dispute Resolution and the Law of Intellectual Property, SINGHANIA (Nov. 08, 2022, 9:29 AM),

[2] Jennifer Mills, Alternative Dispute Resolution in International Intellectual Property Disputes, 11 OHIO St. J. on DISP. RESOL. 227 (1996).

[3] Susan Corbett, Mediation of Intellectual Property Disputes: A Critical Analysis, 17 NZBLQ, 2 (2011).

[4] Bajaj Auto Ltd. v. TVS Motor Company Ltd., (2009) (77) ALR 687.

[5] Scott H Blackmand and Rebecca M McNeill, ADR in Commercial Intellectual Property Disputes, 47 AM U L REV, 1709, 1716 (1998).


[7] Civil Procedure Code, 1908, §89 (2) (d), No. 5, Acts of Parliament, 1908 (India).

[8] The Commercial Courts Act, 2015, §12 A, No. 4, Acts of Parliament, 2015 (India).

[9] M/s. Afcons Infra. Ltd. & Anr v. M/S Cherian Varkey Constructions (P) Limited & Ors. (2010) 8 SCC 24

[10] Supra, Note 6.


[12] DLSA Public Notice, (last visited Nov. 7, 2022).

[13] Bawa Masala Co. v. Bawa Masala Co. Pvt. Ltd. and Anr, AIR 2007 Delhi 284.

[14] Civil Procedure Code, 1908, §89 (2) (d), No. 5, Acts of Parliament, 1908 (India).