The experience of applying Alternate Dispute Resolution (ADR) to
intellectual property matters in India can be examined over three
phases, namely :
Prior to July 2002;
From July 2002 to 2006;
In the first phase, i.e. prior to July 2002, there was hardly
any experience of using ADR as a tool to settle intellectual
property disputes. In this phase, a large percentage of IP law
suits filed in India would get settled after the initial stage of a
lawsuit relating to the grant or denial of an interim injunction.
Whichever way the injunction was decided would invariably determine
the final outcome.
Some would venture to say that 90% of the cases settled this way
with very few cases moving towards trial and of the remaining
cases, a good number would fizzle out before the trial. This
resulted in judges, lawyers, litigants and academics treating
intellectual property disputes as essentially interim injunction
There were two trends which changed this. First and foremost was
the substantive changes made to the intellectual property laws on
account of TRIPS. Thereafter procedural laws also underwent a root
and branch revision in July 2002 as the Code of Civil Procedure
("CPC") was dramatically amended.
The second trend was the emergence in July 2005 of the damages
The former event introduced a new provision under Section 89 of
the CPC which provides that if a court sees elements of a
settlement, mediation, conciliation etc. then the court can, of its
own motion, refer the dispute for mediation, conciliation etc. as
per the procedure laid down in Section 89.
Up to this stage, mediation had not been attempted in
intellectual property matters although there was vast experience of
settlement which was essentially arrived at by mutual consent
between the litigants with or without the assistance of their
During the phase 2002-2006, there were a few intellectual
property cases where mediation was attempted but there was very
little experience or faith in the likely success of the process. As
a result, the mediation process almost entirely failed.
In 2006, there was a burst of training of judges in Delhi and
Bangalore which exposed the judges to advanced models of mediation,
early neutral evaluation, (ENE) plea-bargaining, etc.
By this time, the Delhi High Court had started to grant damages
in a large number of intellectual property matters and some courts
had taken the view that it was high time that damages, not only
compensatory but punitive and exemplary, were granted in order to
reduce the pressure on the criminal justice system and to make the
civil remedy more attractive. As a result of this, the plaintiffs
began asking for not just an injunction but something substantially
more and cases would not settle with the same ease as earlier.
The defendants were fighting back, unwilling to pay damages, and
mediation came along as a useful tool in resolving some of these
In the beginning, one or the other of the parties would be
reluctant to agree to mediation for fear that the failure to esolve
issues before the Mediator would somehow be reported to the court
as being attributable to their conduct but later, as the number of
experienced Mediators increased, everyone realized that the success
of the process lay in its confidentiality.
The situation today is that not only are litigants happy to
attempt mediation but the Delhi High Court Mediation Center has
seen a very high success rate of around 70%. The Delhi High Court
has introduced a form to be filled up with every law suit at the
stage of institution whereby a Plaintiff must to indicate whether
it desires to settle the matter through mediation, conciliation,
etc. In Bawa Masala Co. vs Baba Masala Co. Pvt. Ltd. Hon'ble
Mr. Justice Sanjay Kishan Kaul of the High Court granted an ENE
order and two neutrals gave their report following which a number
of disputes between the parties got resolved as a result of
Apart from New Delhi, the experience of mediation in Bangalore
has been a remarkably good one due to the efforts made by
Hon'ble Mr. Justice Cyriac Joseph, former Chief Justice of the
Karnataka High Court and presently a Judge of the Supreme
The experience at the end of the day is still a mixed one and
there is a great desire of parties to seek out experienced
Mediators whose personalities to a great extent determine whether
the case will settle. For this reason, the training of Mediators
has been stepped up considerably.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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