Alternative Dispute Resolution in Intellectual Property Law

Intellectual property is one of the most important assets a business can have. IPs alone can elevate a company’s value and be a very powerful tool for maximizing its financial potential. Given its value, it’s not surprising that many high-stakes disputes have been caused in the name of IP.

To the layman, the term “disputes” in context of IP may automatically remind them of courts, lawyers, and time consuming legal processes. However, this is not the case.

Disputes resolution over intellectual property rights can be done in two ways. The more commonly discussed through the Litigation (Court), one that is less discussed and the topic of this article is Non-Litigation (off the court) which is also often referred to as Alternative Dispute Resolution (ADR).

The Arbitration and Alternative Dispute Resolution in Indonesia is regulated by Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. In Article 1, Arbitration is defined as a mechanism of settling civil disputes outside the general courts based upon an arbitration written agreement by the disputing Parties.  The agreement in question refers to a form of an arbitration clause made by the parties before a dispute arises or a separate written arbitration agreement made by the parties after a dispute arises, with the arbitration decision being final in nature and is legally binding upon the parties.

Furthermore, Article 1 Number (10) Law No. 30 of 1999 also stipulated the definition “Alternative Dispute Resolution (“ADR”) namely a mechanism for the resolution of disputes or dissent through procedures agreed by the parties, i.e. resolution outside the courts by consultation, negotiation, mediation, conciliation, or expert assessment.

The Indonesian legal system allows Arbitration and ADR as a means of dispute resolution for IP matters. Thus,  these two methods are featured several provisions of IP legislation, including Article 95 Paragraph (1) of Law No. 28 of 2014 on Copyright, Article 93 of Law No. 20 of 2016 onTrademark and Geographical Indications, Article 153 Paragraph (1) of Law No. 13 of 2016 on Patent and so on.

However it’s important to keep in mind that dispute resolution on Violation of Intellectual Property Rights must be solved by the litigants before charges or criminal law attempts are made against copyright infringement as referred to Article 95 paragraph (4) of Law No. 28 of 2014 on Copyright and Patent Infringement as referred to in Article 154 of Law No. 13 of 2016 on Patent.

Since 2011, the Arbitration and Mediation Board of Intellectual Property Rights (BAM-HKI) has been established to conduct Settlement of Adjudicative Intellectual Property Rights Disputes namely a Non-Adjudicative Arbitration, such as mediation, negotiation and conciliation for disputes in the field of Intellectual Property Rights. This includes, for example, license breach disputes, franchising disagreements, transfers of intellectual property rights and other forms of IP disputes that may harm the rights holders.

A more practical approach

Some might say that dispute resolution through Arbitration and Alternative Dispute Resolution (ADR) as more ideal compared to ideal, because it can be done with lower costs and less time consuming, while also resulting in decisions that are final and binding without going through the hassle of courts.

As explained above, it is perhaps recommendable to first attempt Non-Litigation efforts such as Arbitration and Alternative Dispute Resolution (ADR) before going directly to the court (litigation). The disputes resolution through litigation can be seen as the the final means (ultimumremedium) when efforts of alternative dispute resolution fail to resolve issues.

Conclusion

To seek justice and legal certainty over dispute resolution in the field of Intellectual Property Rights, it is recommended that the parties prepare a path to resolve through Arbitration and Alternative Dispute Resolution (ADR). Am Badar & Am Badar are ready to represent our clients in Litigation and Non-Litigation for IP disputes. We will provide you with a team of legal professionals whose capabilities are unquestionable and are richly experienced in conducting Litigations, Investigations, Negotiations, and a variety of other IP services to the benefit of our esteemed clients.  If you have any questions, do not hesitate to contact us via email at ambadar@ambadar.co.id.

Source

  • Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution
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