Mediation at OHIM: an alternative to litigation?

Abstract

OHIM offers mediation at the appeal stage of inter partes proceedings as an alternative to litigating before the Boards of Appeal and the EU Courts in Luxembourg. This facility builds on OHIM’s mandate to invite the parties to reach a friendly settlement and is free of charge (if the mediation takes place at OHIM’s premises in Alicante) or subject to a small administrative charge (if the mediation takes place at OHIM’s offices in Brussels). Not only does mediation accelerate dispute resolution and cut costs (as compared with classic litigation) but also it allows business interests to be factored into a confidential settlement. Mediation at OHIM uses multilingual, accredited Office staff and maintains a flexible format, guaranteeing the neutrality and impartiality of the mediator (who may, inter alia, not take in proceedings involving the same parties) and encouraging attendance of both the parties and their lawyers. Only in exceptional circumstances will mediation not be useful and is particularly suited to complex, multi-actions where costs are mounting and negotiations have reached a stalemate, or sensitive issues need to be kept private, or where business interests make it interesting for on-going relationships to be preserved. Typically mediations involve disputes in the context of opposition, invalidation, ownership, license and infringement controversies. Mediations at OHIM are facilitative in style and rely on a combination of individual and private meetings to bring the parties closer together and negotiate in a controlled and confidential environment. Heads of agreement are generally drawn up at the end of a full day’s mediation meeting, with formal settlement agreements following shortly thereafter. In the small minority of cases in which mediation cannot lead to settlement, the proceedings before the Boards of Appeal resume (albeit without the involvement of the mediation). All papers relating to the mediation are destroyed.