The Office for Harmonisation in the Internal Market (OHIM) has established a voluntary, confidential and free mediation service with the purpose of aiding the parties involved to reach an amicable settlement in disputes arising in matters of Community trademarks and Community designs / drawings.
Thus, should it be deemed of use, the Boards of Appeal will invite the parties to reach an amicable agreement to settle their disputes in an inter partes procedure. Mediation should make it easier to achieve such an amicable agreement regardless of other alternative dispute solving mechanisms.
In order to take up mediation, there must be a decision handed down by the OHIM in a contradictory inter partes procedure that shall be subject to appeal.
The mediation system will apply to processes in which two or more parties to a procedure with the Office endeavour, on their own and voluntarily, to reach an amicable agreement on the solution to their dispute with the aid of a mediator. However, the mediation system cannot be applied with respect to those rights and obligations upon which the parties are not free to decide, such as occurs in cases of absolute grounds for refusal of a Community trademark or Community drawing or design application.
An application for a mediation procedure may be filed against a decision of the Opposition Division, the Cancellation Division or the Invalidity Division by means of a joint statement of the parties at any time following the lodging of an appeal and of the relevant writ of grounds.
The appeal and mediation are two separate procedures such that when the parties apply for a mediation procedure, the Appeal Board shall suspend the appeal procedure and await the result of the amicable agreement. Should mediation fail, the appeal procedure will be taken up again.
Parties are free to choose a mediator from a list provided by the OHIM to such effect and the latter must keep a list of qualified members of its staff adequately trained to intervene in a mediation procedure.
Discussions and negotiations undertaken in the framework of mediation will be confidential for all people involved therein, particularly for the mediator, the parties and their representatives and the parties must sign a confidentiality agreement before mediation commences.
The mediator cannot inform the Board of Appeal with respect to the opinions, suggestions, proposals, concessions, data or documents provided within the framework of mediation and will not be liable to any of the parties for the outcome of the mediation process or fulfilment of the amicable agreement reached thereby or for the legality and enforceability of that agreement.
Once an amicable agreement bringing the dispute to an end has been reached, the parties shall place its terms on record in writing and sign a settlement agreement. Finally, the Board of Appeal to which the matter was initially allocated will take note of the agreement reached and will hand down a decision taking the procedure as concluded and, in addition, will decide on the costs involved should the parties not have established anything in this respect.