Alternative Dispute Resolution
The ADRS offers mediation, conciliation, assisted negotiation and expert determination, which may be used in combination with one another or separately.
Operating under the auspices of the EUIPO Boards of Appeal, the Alternative Dispute Resolution Service (ADRS) acts as a modern IP dispute resolution hub offering a full spectrum of ADR tools to businesses and individuals active in the EU and, as the case may be, beyond. The ADRS offers mediation, conciliation and expert determination, which may be used in combination with one another or separately.
In the wake of the COVID-19 crisis, all these ADR services are now offered online and, for the benefit of SMEs only, have been extended to cover proceedings before the Opposition, Cancellation and Invalidity Divisions of the EUIPO (ADR SME special service).
In a nutshell, ADR services are directed at:
- all parties involved in inter partes proceedings before the Boards of Appeal and in addition
- exclusively to SMEs involved in inter partes proceedings before the Office in first instance opposition, cancellation and/or RCD invalidity proceedings under the ADR SME special service.
ADR processes carried out within the EUIPO incur no additional fee for the parties, are run fully remotely and can be offered in 12 languages of the European Union
The Alternative Dispute Resolution services have been introduced by the Boards of Appeal to better serve companies and SMEs, and to offer them more choices in effectively resolving their disputes. ADR is attractive because EU IP litigation can be time-consuming, unpredictable and costly. The costs are not just in the professional fees needed to litigate effectively but also extend to the management time diverted to administering any such ongoing legal proceedings – time that could have been devoted to profitable commercial pursuits. Moreover, IP is particularly prone to cross-border disputes for which global solutions are necessary but for which traditional litigation simply encourages battles on multiple fronts.
The ADR tools that we offer to assist disputants in the quest for swift, financially savvy, global settlements that offer predictable legal certainty.
Types of ADR services offered
The ADRS offers the services below, which can be used in combination with one another or separately, according to the needs of the interested parties.
Mediation is a process in which disputants, guided by a mediator, attempt to reach an amicable settlement of their differences pending at the EUIPO and, as the case may be, elsewhere (either within the EU or internationally).
Neutrality and impartiality of the mediator are the cornerstones of this interest-based, not rights-based process, together with the voluntary participation of the parties, the flexibility and confidentiality of the proceedings and the autonomy and attendance of all parties.
Mediation in the EUIPO Boards of Appeal is not limited to the Intellectual Property rights that the Office manages (trade marks and designs) but can include other IP rights (such as copyright, domain names and patents) or any other dispute pending between the parties, if they so wish.
The mediator’s role is to assist the parties in reaching a voluntary and mutually satisfactory settlement. It is not the role of the mediator to give legal advice, to propose his/her own solutions or to represent any party or adjudicate on the merits of the case. Settlement is consensual and has to be agreed to by the parties.
One of the main benefits of a settlement agreement achieved through mediation is that it is more likely to preserve an amicable and sustainable relationship between the parties. These benefits are even more pronounced in cross-border contexts, where global packages can be negotiated and multiple litigation avoided. Mediation may even give rise to new business opportunities.
Mediation may be held entirely online or in person at the EUIPO in Alicante; in both cases the service does not require the payment of an additional fee by the parties. However, where mediation takes place in the EUIPO premises in Brussels, a one-off fee of EUR 750 is charged to cover the travel and accommodation expenses of the EUIPO mediator.
Detailed documentation on all aspects of the mediation process can be accessed from this page by clicking on the links below:
Documentation on all aspects of the mediation process
Conciliation is a voluntary process in which a conciliator proactively suggests possible solutions to the dispute. These proposals will be discussed, negotiated and fine-tuned with the parties, who remain at all times free to accept or decline the proposed solution.
The conciliator will be in charge of guiding the conciliation process and will submit a proposal for the settlement of the dispute, if he or she considers there is a reasonable prospect that it could be accepted by the parties and an end put to the dispute. It must be stressed that the decision to conciliate is purely voluntary and requires the consent of all parties to the dispute.
The procedure differs from mediation in that the conciliator makes proposals as to how the dispute could be swiftly settled whereas in mediation the mediator usually does not make proposals but works with the parties to assist them in formulating their own proposals.
When suitable, conciliation may be suggested by the Rapporteur of a case pending at the Boards of Appeal. However, it can also be requested by one or both parties, using a unilateral or joint request form. In all cases, the consent of all parties to the dispute will be needed.
Detailed documentation on all aspects of the conciliation process can be accessed by clicking on the links below.
Expert determination is a process in which an expert appointed by the parties to a dispute gives a binding or non-binding opinion on the matters that have been submitted for determination. It is mainly designed to be offered to disputants that are unable to agree on specific legal, commercial and/or technical issue(s) in the context of some other ongoing ADR process, most typically mediation.
Normally, the matters brought for expert determination are technical or legal issues that form part of the overall dispute, but on which the parties are unable to agree.
The determination will be made in writing and the decision to appoint an expert is purely voluntary and requires the consent of both parties to the dispute.
Expert determination may be requested by the parties at any stage of a mediation or any other ADR process related to proceedings before the Office. It may also be suggested upon the initiative of the mediator or other ADR facilitator. However, in order to request Expert Determination, the parties must submit a joint request and it is thus a purely consensual process. The list of experts is available here
Detailed documentation on all aspects of the expert determination process can be accessed by clicking on the links below.
The ADRS counts on a team of qualified mediators, composed of senior staff members of the Office who have undergone specialised mediation training with the Centre of Effective Dispute Resolution (CEDR) and/or the Chartered Institute of Arbitrators (CIArb).
All mediators are very experienced in IP cases and all are multilingual, allowing users a wide linguistic choice when engaging in mediation.
The names of the mediators are on our website, together with their CVs, to allow the parties to choose a particular person to mediate if they so wish. Guidance and assistance can also be sought from the ADRS in the selection of a mediator.
Model ADR contractual clauses
The ADRS provides model ADR contractual clauses to facilitate party agreement to settle potential disputes amicably.
Parties wishing to refer to EUIPO ADR are encouraged to include an appropriate ADR clause into any commercial contract in connection with IP rights. This allows contracting parties to agree that, in case any future dispute arises, they will use an alternative form of dispute resolution (such as mediation) as a step prior to court proceedings.
The recommended clauses have been drafted with the support of the ADR Stakeholder Advisory Board (SAB), reflecting best practices for mediation and other dispute resolution modalities.You can download the model contractual clauses here
As part of the efforts to promote the services offered, several networks have been established with groups that play an active, participative and advisory role in the initiatives the ADRS intends to take.
|Stakeholders Advisory Board (SAB)||Show|
The SAB network draws together public institutional and private business representatives to work on holistic and coordinated lines of action in furthering dispute prevention, de-escalation and resolution with the aim of ensuring that the services offered are first-rate and meet real commercial needs and interests, in particular those of SMEs.
Stakeholders include representatives from IP user and EU business associations, Member State IP offices offering or intending to offer ADR, the EU Commission, international ADR centres, EU bar associations and other entities with relevant expertise.
The ADR-SAB holds meetings twice a year, organises working groups and follows up through regular reports and feedback on the effectiveness of initiatives taken.
|Network of IP Judges of the EUTM and RCD Courts on mediation||Show|
The ADRS established a cooperation with courts in the European Union that have jurisdiction in intellectual and industrial property cases, aiming to create a network of courts which promote mediation in IP disputes.
This cooperation programme is highly advantageous for strengthening the use of mediation in IP proceedings pending before national Courts and EU/national IP Offices and for generating close cooperation with the various national and European mediation and other ADR providers.
Some of the goals of the cooperation programme are: to increase the impact of mediation in IP, to raise awareness among IP right owners involved in multiple disputes in order to arrive at sustainable global settlements, to foster mediation by establishing a road map by which judges will refer IP cases to ADR, to achieve better and more durable agreements than those reached just through negotiation and to allow the creation of close links with mediation-friendly judges and draw in new members of the judiciary.
Are you considering ADR? Do you have questions? Contact us for more information about the ADR services offered by the EUIPO Boards of Appeal.
Alternative Dispute Resolution Service