Your photograph suddenly appears on somebody else’s website.
Another company starts using a name or logo (or, worse, both) suspiciously and confusingly similar to yours.
Or maybe you are accused of copying somebody’s content or get an officious letter demanding you “cease and desist” from using your company name or logo because somebody thinks it’s too much like theirs.
Now what?
You could go to court and fight out who is in the right. And you might need to do that to protect your rights. But you might want to consider early mediation to see if there’s a less contentious, less expensive, and more creative route to resolution.
Mediation’s Approach to Dispute Resolution
Mediation works when it helps the parties get past the positions they’ve staked out and start to see their underlying interests — and then to think about what they might do together to promote those interests. A mediator’s task is to guide discussions that reveal those interests and new ideas, not to tell the parties what they should do. The parties might bring lawyers, or they might not. The idea is you know your business and your needs best. The process is largely in the parties’ hands, and participation is voluntary; at any point, either party can decide it isn’t working and seek recourse somewhere else.
Usually, that “somewhere else” is a courtroom. Court has its place (Rubric lawyers do much of their work there, after all), but parties should remember that they lose most of their control over their case and its outcome when they place it in the hands of a judge or jury. The law limits the ways courts can resolve your disputes, and sometimes those limits mean that even a lawsuit’s winner isn’t thrilled with the ruling.
IP Disputes That May Benefit From Mediation
Because it gives parties more control over their destinies, mediation offers a good option for many — maybe most — IP disputes. Take the examples that opened this post:
- That company using your photo without permission is infringing your copyright, but they may not realize it (lots of well-meaning people make that mistake). In mediation, you might negotiate a price for the use of your work and maybe an agreement that they’ll pay for more of your pictures.
- A new company with a logo or name like yours might not be aware of the similarity. Maybe they don’t know your company, or maybe they didn’t see the similarity. Mediation could give you the opportunity to explain why you think consumers will be confused and to come up with tweaks that will change their logo enough to eliminate that confusion.
In both circumstances, a mediator can guide you and the other party to consider your values and interests and, building on those, come up with a business solution that might be good for everyone — or at least minimize the harm or cost to everyone. In the process, you might create new business relationships or spare existing relationships from the damage done by litigation. And you could do all that while keeping your discussions, negotiations, and agreements confidential.
When Mediation May Not Serve Your Needs
Of course, mediation is not always an appropriate option for settling an IP dispute. In instances where one party has directly, deliberately, or maliciously infringed on another party’s intellectual property, perhaps through counterfeiting, piracy, or other acts of bad-faith, litigation may be a more effective way to resolve the matter. The parties’ relationship may be so hostile that any collaboration seems impossible (though you may well be surprised at how well mediation works even then). Or, you may be involved in a complex IP dispute and wish to be publicly vindicated. In any of those situations, you may find litigation will better serve your needs. Though, of course, even once you start litigation, you are free to work with a mediator (and in most cases in Minnesota, the judge will probably order you to try it). Ultimately, it is helpful to recognize that you have several options for resolving your IP dispute; depending on your specific circumstances and goals, you can make an informed decision about how to proceed.
Interested in learning more about how mediation can help you resolve your business or IP dispute in Minneapolis or St. Paul? Reach out to the knowledgeable and friendly legal team at Rubric Legal LLC today by calling (612) 465-0074.