1 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 WIPO Staff Briefing June 19, 2009 WIPO Arbitration and Mediation Center Erik Wilbers

2 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Presentation Outline Objective Role Why Consider IP ADR? Results –WIPO-administered arbitration and mediation cases –WIPO UDRP-based domain name cases WIPO Strategic Goals Staff and Structure Information Technology Challenges Looking Ahead

3 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Center Objective WIPO –To promote the protection of IP throughout the world (WIPO Treaty) Center –To contribute to the productive use of IP assets through the provision of quality dispute-resolution services that involve the minimum dislocation for IP assets under dispute, and to enhance the framework for the protection of IP in the Internet domain name system (Proposed P&B 2010/11) In other words –Rights only being useful if you can enforce them, IP owners and users require effective dispute resolution tools

4 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Center Role To provide information about, and case services for, the resolution of commercial disputes between private parties involving IP and technology, through procedures other than court litigation (ADR) –Resource institution –Administering authority Principal ADR procedures –Mediation –(Expedited) Arbitration –Expert Determination –Administrative procedures

5 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Resource Institution Producing and providing guidance about IP ADR –Stakeholder queries –Workshops and conferences –Website and publications Providing policy input and designing special ADR procedures for particular types of IP disputes, e.g. –Domain name policies (e.g. national domains, expansion domain name system) –Recurring disputes in specific IP sectors

6 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Administering Authority Managing ADR dispute procedures based on clauses designating the Center Under WIPO Rules, and under non-WIPO Rules (e.g. UDRP for domain names) Case management elements include: Procedural guidance for parties Appointment of neutrals Communicating with parties and neutrals Facilitating hearings Fee management Online filing options (WIPO ECAF)

7 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 WIPO ECAF Online Case File

8 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Why IP ADR? International IP rights are often created, exploited and protected internationally, and so IP disputes often involve parties and/or commerce in multiple jurisdictions By offering a single international forum, ADR can help avoid issues sometimes associated with court litigation –Jurisdictional competence –Consistency of results –Time and cost, especially of foreign litigation

9 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Why IP ADR? Neutral Expertise IP disputes tend to be technical/specialized Many courts are not specialized in IP In ADR, parties control selection of neutral(s), including expertise in the relevant legal, technical or business area WIPO Center List of Neutrals

10 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Why IP ADR? Efficiency IP covers fast-evolving technology, used in highly competitive markets Disputes can interfere with timely and full exploitation of such IP ADR offers party control over dispute process, including timelines, procedure, law, language, plus final, enforceable results

11 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Why IP ADR? Confidentiality Confidentiality is often essential in IP, especially in technology –Except where public precedent is needed Unlike public court litigation, ADR is a private mechanism ADR (e.g. WIPO Rules) helps to preserve confidentiality regarding existence, disclosures and result of case

12 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Why IP ADR? Party Relationships IP often developed and exploited in long-term relationships between partners –Industry, SMEs, universities ADR is a private procedure agreed by the parties and adapted to their needs in terms of process and remedies Mediation is particularly suitable, as it is less contentious and accommodates not only party rights but also party interests

13 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Why Not IP ADR? Limitations Contractual (consensual) basis –No obligation to submit to ADR procedure without contract clause –Unsuitable for bad-faith infringement (e.g. counterfeiting ) Parties must pay fees of neutrals Outcome binding between the parties themselves, but no public precedent

14 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 WIPO-Administered Arbitration and Mediation Cases 198 (most received in last five years) (excluding referrals and bons offices) Value in dispute from Euro 20,000 to US$ 600 million Some examples of transactions: patent licenses, R&D agreements, software/IT, trademark coexistence and other settlement agreements, as well as patent infringement

15 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 WIPO-Administered Arbitration and Mediation Cases: International vs. Domestic

16 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 WIPO-Administered Arbitration and Mediation Cases: Types of Procedure

17 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 WIPO-Administered Arbitration and Mediation Cases: Subject Matter

18 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 WIPO-Administered Arbitration and Mediation Cases: Business Areas

19 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 WIPO-Administered Arbitration and Mediation Cases: Settlement Rates

20 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 WIPO UDRP-based Domain Name Cases

21 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Top 25 WIPO UDRP Country Filing

22 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Areas of WIPO UDRP Complainant Activity

23 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 WIPO Strategic Goals Principally serving WIPO Goal II: Provision of Premier Global IP Services Also contributing towards other WIPO Goals, including: –WIPO Goal VI: International Cooperation on Building Respect for IP –WIPO Goal VII: Addressing IP in Relation to Global Policy Issues

24 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Staff and Structure 1.4% of WIPO budget 38 team members (CAM building) –Secretariat –Case Managers –Senior Lawyers –IT, publications and event support staff –27 nationalities from all continents 4 Sections –IP Dispute Management (Mr. de Castro, Head) –Legal Development (Ms. Min, Head) –Information and External Relations (Mr. Rattray, Head) –Domain Name Dispute Resolution (vacant)

25 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Information Technology Databases –UDRP-based domain name case management –Online legal index –Country-code top level domains –Temporary procedures (Sunrise) –Arbitration and mediation cases –Tailored schemes initiatives –Neutrals –ECAF: web-based case file Web site –48,000 pages –Over 3 million page views in –1 million in UDRP cases –Daily decision subscription

26 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Challenges Running and upgrading case operations at the same time Resource management: balancing staff and funding levels with dynamic demand As a market-oriented service, achieving synergies with other parts of our public organization Mixture of case and policy work that must respond to fast-moving developments in the Domain Name System Extensive competition in ADR, involving many established providers with captive domestic markets Center being Geneva-based, broadening its potential appeal to other regions (e.g. Asia)

27 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Looking Ahead (Arbitration, Mediation, Expert Determination) Upgrading infrastructure, e.g. –Next generation ECAF –Expert determination guidance Exploration/development of tailored schemes, e.g. –AGICOA –Art and cultural heritage –Biodiversity, life sciences –Film industry –Research collaboration and technology transfer –Telecommunications

28 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Looking Ahead (Domain Names) Upgrading UDRP infrastructure –WIPO e-UDRP Initiative –Jurisprudential overview –Index review Domain name policy proposals and system design for IP protection in ICANN New gTLD Program, including: –Rights Protection Mechanism (RPM), a rapid suspension option complementing UDRP –Post-delegation Dispute Resolution Procedure for Registries (and possibly Registrars)

29 WIPO Staff Briefing, WIPO Arbitration and Mediation Center, June 19, 2009 Thank You!