The outcome of an intellectual property dispute can be based upon some very subjective factors. For example, whether use of a particular mark is likely to cause confusion in a trademark infringement matter. There are 7-10 factors, depending on jurisdiction, that the court considers to determine whether there is a likelihood of confusion and liability. When parties are litigating an intellectual property case, many of these factors are subjective in nature and therefore can create uncertainty.
Why Is Mediation Useful?
There are many reasons why you would want to choose mediation over a court decision, including:
- A unique and helpful scenario where parties can agree to terms they usually wouldn’t have the opportunity to agree to in court.
- The statute binds the court as to what they can order as relief.
- The mediator can be very creative in crafting a solution the court would otherwise be unable to order.
The Court is limited as to what it can provide to the parties in the form of an order. Thus, the court has to adhere to the language of the relevant statute. However, a mediator has the ability to provide creative solutions that each party may find more helpful to resolve their dispute.
What Is Essential to the Client in a Mediation Case?
Sometimes what a party is trying to achieve is not even what is requested in the complaint because they are limited by statute. Oftentimes, there are many underlying issues that are hoped to be achieved. Likewise, the courts cannot craft a remedy for the parties that may be available in mediation. A mediator will understand what is important to the parties that will resolve the dispute. A judge is limited and can only do so much.
On the other hand, a mediator can be creative with proposed resolutions.
As an active Intellectual Property litigator, Mark offers successful insight on mediation. Contact Mark Warzecha to discuss your case.
