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Arbitration and alternative methods of dispute resolution

By: Mauro Ferreira

April 24, 2023

A fast and effective way to resolve Intellectual Property disputes.

Over the years, a strong tendency has been created worldwide to solve disputes by arbitration procedures and other alternative methods of dispute resolution, which do not use the Judiciary, because they are fast and effective alternatives to solve controversies.

The possibility of resolving disputes through alternative methods or arbitration in the field of intellectual property was a controversial issue since it was a common understanding that greater expertise in the area was necessary, as it was regarded as a technical and complex matter. In order to solve this problem, it was started setting up Dispute Resolution Centers and Arbitration Chambers specialized in the matter, with technical and qualified professionals.

An example of a specialized Center in Brazil is the Intellectual Property Dispute Resolution, Mediation and Arbitration Center (CSD) of the Brazilian Intellectual Property Association (ABPI), which has 3 Chambers: Chamber for Dispute Resolution Related to Domain Names (CASD-ND), the Mediation Chamber (CMed-ABPI) and the Arbitration Chamber (CArb-ABPI), where it is possible to solve disputes with fewer costs and much faster, if compared to the Judiciary in Brazil.

As a result, various commercial contracts for intellectual property assets already provide for an arbitration clause and delimit Chambers responsible for resolving any possible inter-party issues. Of course, those instances requiring to include the INPI as a Party is not entrusted to arbitration, even because Articles 57 and 175, of the Industrial Property Law – LPI, stipulate that these cases are under Federal Court jurisdiction.

Anyway, in cases not requiring to include the INPI as a party, and there is no arbitration clause, it is possible to agree to and choose the arbitration or another alternative method for dispute resolution. Among their other advantages is confidentiality, which is particularly important in intellectual property matters, where publicity of the dispute may affect the reputation of the concerned parties.

Moreover, in the specific case involving Domain Name Dispute, there is an agreement signed between the Information and Coordination Center of Point BR – NIC.br and the CSD-ABPI to solve these specific controversies.

In the past, to obtain the transfer or cancellation of a domain that, for example, was similar to a previous trademark registration, it took years at the State Courts. With the use of CASD-ND, the Chamber’s Regulation currently provide that the disputes shall be resolved in no longer than ninety (90) days, at a much lower cost.

Therefore, arbitration and other alternative methods of dispute resolution applied to intellectual property issues are currently agile, safe, and efficient options, being necessary to analyze case by case based on the needs and preferences of the parties.

To support the companies in these cases, and determine what will be the best way to act, ClarkeModet Brasil relies on professionals trained in the matter who, from an understanding of the specific situation of the client, draw strategies that aim to maintain the client’s interests safeguarded and to avoid future deadlocks.

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