Amicable dispute resolution

1. Amicable dispute resolution in the field of intellectual property in general

Amicable dispute resolution procedures imply any judicial or out-of-court procedure by which the parties seek to resolve the dispute amicably and reach a settlement regarding the subject matter of the dispute, with the help of a trusted third party (for example, a conciliator or mediator).

Such procedures are based on the voluntariness and procedural cooperation of the parties, and are conducted more quickly and efficiently than court proceedings, which are otherwise a regular means of legal protection in civil proceedings but are often expensive, time-consuming and exhausting for the parties.

Disputes in the field of intellectual property rights may be suitable for resolution in mediation proceedings because they are a type of commercial disputes that are related to violations of contractual and other business relationships between the parties and are often confidential in nature.

Parties may enter into an agreement in advance, committing to solve any or all future disputes by mediation. 

2. Conciliation (mediation) procedures before competent courts in the Republic of Croatia

Conciliation proceedings in Croatia can be conducted before courts competent in civil proceedings (for example, proceedings in a dispute over trademark infringement).

Conciliation proceedings are initiated during civil proceedings at the proposal of one party, if the opposing party accepts it, then at the joint proposal of the parties or at the proposal of the trial judge which may be presented to the parties during the civil proceedings, provided that both parties accept it.

The court before which civil or other proceedings are pending may, at a hearing or outside the hearing during the entire proceedings, issue a ruling instructing the parties to participate in an information meeting on mediation within a certain period of time, to initiate mediation or to take some other action for the purpose of amicable resolution of the dispute.

The parties may agree to submit a proposal for amicable dispute resolution even after filing an appeal, and then the amicable dispute resolution procedure will be conducted before a judge-mediator of the second-instance court.

The mediation procedure is confidential (everything presented during the mediation procedure remains confidential and cannot be used in litigation or outside of it). The provisions of the Act governing amicable dispute resolution shall apply accordingly to amicable dispute resolution procedures conducted in courts.

Successful mediation before the court ends with a settlement, the form and content of which are determined by the parties themselves. The settlement is concluded before a judge-mediator in the form of a court record and is equal to a court settlement. The settlement reached in mediation must not be contrary to law, morality, or the rights of third parties. The court settlement reached is enforceable.

Disputes in the field of intellectual property are suitable for resolution through court mediation, and in this procedure, judge-mediators will try to help the parties reach an agreement and amicably resolve the dispute.

Lists of judge-mediators have been established at commercial courts. The list of mediators is established by the president of the court.

3. Mediation procedures before other authorities in the Republic of Croatia

•  There is the Centre for Amicable Dispute Resolution established in Croatia for the purpose of creating better conditions for amicable resolution of disputes and avoiding unnecessary initiation of court proceedings, which continues operating as the National Mediation Centre (hereinafter: the National Centre) in accordance with the Mediation Act (OG 27/2006). The National Centre encourages development of the culture of amicable dispute resolution by mediation. The National Centre maintains a Register of Mediators and a Register of Mediation Institutions. The National Centre conducts an information meeting about mediation and the mediation itself, independently or in cooperation with other mediators or mediation institutions.
  
  Mediation out of court may be conducted by institutions legally authorised for mediation or approved by the National Centre.
  
  E-mail address of the National Centre is cmrs@cmrs.hr.

• The Conciliation Centre at the Croatian Chamber of Economy is an independent institution at the Croatian Chamber of Economy (HGK) that provides mediation services with an aim to achieve settlement in civil, commercial, labour and other property disputes regarding rights that the parties can freely dispose of. 
  
  Disputes in the field of intellectual property rights can also be resolved with this centre. 

  HGK has also established regional conciliation centres at county chambers of HGK, with headquarters in Koprivnica, Varaždin, Osijek, Pula, Rijeka and Split.
  
  Interested parties for mediation can contact them at: mirenje@hgk.hr.

• Croatian Mediation Association (HUM) has been established for amicable resolution of various kinds of disputes, among others, even commercial disputes. Mediation costs are borne by parties equally unless agreed otherwise; the costs are determined by HUM’s Cost Estimate. Mediation meetings are being conducted at the association premises, and they can be conducted online as well.

  Mediation procedures in disputes in the field of intellectual property can also be conducted with this association, and HUM recently signed an Agreement on Cooperation with the Chamber of Representatives in the field of industrial property rights, in order to strengthen the role of mediation in resolving this type of disputes. Mediation enables quick, confidential and flexible resolution of disputes with the help of mediators specialised in the field of intellectual property rights (for example, a dispute between two entrepreneurs over the right to use a certain trademark or industrial design).

  Interested parties for mediation can contact it at: hum.mirenje@gmail.com.

4. Arbitration procedures and special mediation procedures in the field of intellectual property in the Republic of Croatia

• Standing Arbitration Court at the HGK
  
  Standing Arbitration Court at the Croatian Chamber of Economy (HGK) organises arbitration resolution of disputes between Croatian and foreign legal and natural persons, in accordance with the Arbitration Act, valid Zagreb rules and acts of the Court, with an option of resolving disputes by special rules on accelerated arbitration procedure as well. On request of the parties, the Standing Arbitration Court provides also organisational and technical support in ad hoc arbitration procedures. This arbitration is also suitable for resolving disputes with international elements, especially various forms of commercial disputes arisen between legal persons, who can thus efficiently protect their legal interests. Arbitrators, as well as the language and the place of a procedure, are chosen by the parties themselves. The decision made by the Standing Arbitration Court cannot be appealed and this decision equals the final court decision and is subject to execution.

  E-mail address of the Standing Arbitration Court: sudiste@hgk.hr.

• Arbitration with CARNET on disputes regarding Internet domains
  
  Disputes regarding Internet domains can also be related to intellectual property rights, for example when the name of an Internet domain is identical or similar to the name of a previously registered trademark. The parties involved in this type of dispute can conduct proceedings before arbitration established with the CARNET. Arbitration procedure is conducted by an arbitrator individual appointed by the Committee managing the .hr domain from the list of arbitrators. Arbitration procedure is conducted by the “Arbitration Rules for Resolution of Domain Disputes”. Arbitration awards are publicly published and available at this link. 
  
  The request to initiate an arbitration procedure with the CARNET is submitted at: registar@domene.hr, and detailed instructions on conducting procedures are available here.
   
• Council of Experts for Remunerations in the Field of Copyright and Related Rights

  
  The Copyright and Related Rights Act (OG 111/21) provides for specific issues under responsibility of the Council of Experts for Remunerations in the Field of Copyrights and Related Rights (mediation procedures in cases as referred to in Article 239 of the Act, rendering an opinion on the tariff proposal of organisations for collective management of copyright and related rights pursuant to Article 235 paragraph (6) of the Act and rendering other expert opinions as provided by the Act).
  Information for contact and filing submissions for the Council of Experts are available here.

  The Copyright and Related Rights Act provides also for arbitration procedure in the process of setting tariffs of collective management organisation with the Standing Arbitration Court at the HGK 

 

5. Procedures before the EUIPO’s Mediation Centre

Mediation Centre at the European Union Intellectual Property Office (EUIPO) provides amicable dispute resolution services to all parties involved in two-party procedures on intellectual property pending before the EUIPO.

Intellectual property rights, like trademarks, industrial design, patents and copyright, often make the crucial business assets. Intellectual property disputes can arise when other businesses or natural persons infringe on your intellectual property rights or, conversely, when other entities believe you are infringing on their rights.

Services of amicable dispute resolution offered by this Centre are based on neutrality and impartiality of mediators, conciliators, experts and case managers, confidentiality of procedures and voluntary participation of the parties.

Mediation with the EUIPO enables parties to reach an amicable resolution of their dispute, assisted by a mediator who runs the process and helps parties achieve the solution. The mediator does not have the authority to resolve the case, does not give legal advice or make a decision on the merits. The parties voluntarily define the full scope of the mediation, and it may also include other intellectual property rights that are disputed between the parties, thus covering the wider business relations of the parties, all in one single procedure. This significantly reduces litigation costs and avoids complex court cases, especially if they would have to be brought before the courts of several countries. More about the mediation itself is available in the publication Alternative Resolution of Disputes (ARS) Related to Intellectual Property.

Conciliation is a procedure for amicable resolution of disputes in which a conciliator assists the parties in reaching a settlement by proposing possible solutions to the substance of the dispute pending before the EUIPO. The conciliator's proposal will be the subject of negotiations and discussion between the parties, who may accept or reject the proposed solution at any time. The parties must agree on the settlement itself.
A large number of amicable dispute resolution procedures before the EUIPO shall be conducted remotely, via a special online platform, and the parties may decide for the mediation to be conducted live at the headquarters of the EUIPO in Alicante or at the EUIPO’s Office in Brussels.

Examples from the practice of amicable resolving of disputes related to intellectual property can be found in the publication titled Examples of Mediation Cases.

 

6. Procedures before the WIPO's Arbitration and Mediation Centre

The Arbitration and Mediation Centre of the World Intellectual Property Organization (WIPO) offers the possibility of amicable resolution of disputes through mediation, arbitration and accelerated arbitration, as well as expert assessment of individual issues, in order to enable the parties to resolve their domestic or cross-border commercial disputes. The Centre has an international character and specialises in disputes in the field of intellectual property and technology, and also provides services for resolving disputes related to domain names.

Unlike a court dispute, the parties before this Centre can themselves choose the persons who will lead their dispute, they can choose the applicable law, place and language of the proceedings. The procedures are flexible and confidential, giving the parties the opportunity to resolve the dispute and to start or continue their business relationship.

More about the types of procedures, the way of submitting a request and the possibilities of amicable resolution of disputes before the WIPO’s Arbitration and Mediation Centre is available here.