Arbitration & Mediation as an Alternative Dispute Resolution for Intellectual Property Case

In today’s globalization of trade, the increasing of commercialization of Intellectual Property Rights (IPR) can be an important asset owned by rights holders on economic factors. However, the real impact of such rights holders also give rise problems or disputes causing economical losses for the owners of intellectual property rights in their activities.

The problems occurred between the parties to a work can be reviewed in several aspects such as legal, economical, industrial, technological, social and cultural aspects. However, the legal aspect is an important thing as legal protection for the rights holders to a work of intellectual property, so that the law provides a role to give protection for the creators and works that have been made to increase the creation and innovation of the community.

This disputes resolution over intellectual property rights can be done in two (2) ways, namely through the Litigation (Court) and Non-Litigation (Outside the court) or it is also often referred to as Alternative Dispute Resolution (ADR). As time goes by, the settlement of disputes through ADR can be used to resolve general or specific civil disputes.

The Arbitration and Alternative Dispute Resolution regulations in Indonesia as stipulated in Article 1 Number 1, Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution stated that “Arbitration shall mean a mechanism of settling civil disputes outside the general courts based upon an arbitration written agreement by the disputing Parties”.

The arbitration agreement shall mean a written agreement in the 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 and the arbitration award is final in nature and has binding legal force upon both parties to the dispute.

Furthermore, based on Article 1 Number (10) Law No. 30 of 1999 also states that an “Alternative Dispute Resolution (“ADR”) shall mean 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”.

In several provisions of the legislation in the field of Intellectual Property Rights there has been accommodated regarding parties who can resolve disputes outside the court or can resolve disputes through arbitration or alternative dispute resolution (ADR), as can be found in Article 95 Paragraph (1) of Law No. 28 of 2014 concerning Copyright, Article 93 of Law No. 20 of 2016 concerning Trademark and Geographical Indications, Article 153 Paragraph (1) of Law No. 13 of 2016 concerning Patent and so on.

However, please keep in mind, 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 concerning Copyright and Patent Infringement as referred to in Article 154 of Law No. 13 of 2016 concerning Patent.

In order to realize the protection and law enforcement of Intellectual Property Rights Law, the Arbitration and Mediation Board of Intellectual Property Rights (BAM-HKI) has been established in 2011 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, for example a license breach disputes, franchise agreements, transfer of intellectual property rights and other intellectual property rights disputes that can cause economic losses to the rights holders.

Dispute Resolution of intellectual property rights through Arbitration and Alternative Dispute Resolution (ADR) can be said as the right and ideal means compared to having resolved through a court or litigation suit, because the resolution of the case more simple with relatively lower costs and the decisions are final in nature and binding the disputing party.

Besides, the intellectual property rights disputes are closed to public, so that the case will not be exposed or known by the public (if this happens, it will affect and harm the rights holders) and faster time period than through the court.

As explained above, it is better for the parties to the firstly choose the Non-Litigation efforts through Arbitration and Alternative Dispute Resolution (ADR) than going directly to the court (litigation), because the disputes resolution through litigation is the final means (ultimum remedium) of all alternative dispute resolution efforts carried out by the parties without any results.

To seek justice and legal certainty over dispute resolution in the field of Intellectual Property Rights, it is expected that the parties to the dispute or business society choose an alternate path to resolve disputes through Arbitration and Alternative Dispute Resolution (ADR).

Am Badar & Partners also represents clients in terms of Litigation and Non-Litigation or disputes related to Intellectual Property Rights in Indonesia. Cases from our clients are handled by a team of our legal professionals whose experience is unquestionable and are very helpful in conducting Investigations, Negotiations, Sending Warning Letters of Client, and so on.

All members of Am Badar & Partners understand the theory and practice of law, especially in the field of Intellectual Property Rights that are highly qualified and experienced with specialization in their respective fields of Intellectual Property.

Should there be any questions, please do not hesitate to contact us via email at info@ambadar.co.id or marketing@ambadar.co.id.

SOURCE

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