It is a fact that a large number of OHIM inter partes proceedings are resolved by an amicable agreement between the parties. Thus, in opposition procedures, there is a two month cooling-off period, which can be extended for another twenty-two by mutual agreement between the parties. And in all cases, there exists the possibility of suspending them in order to explore an amicable agreement, thus avoiding expenses and the loss of valuable time for the parties.
When this possibility does not come to fruition, or has not been sufficiently explored, it is customary for one of parties to appeal an unfavorable decision.
It is during this Appeal procedure that the OHIM has implemented a mediation process to help the parties reach an agreement.
The request for mediation must be carried out by mutual agreement and include another for the suspension of the procedure and, where possible, jointly designate a mediator included in the list published on the OHIM website.
The said mediator, who may not have any interest whatsoever, nor have intervened in the contested decision, will be able to meet with the parties and, taking into account their interests, reach a conclusion and a proposal for a written agreement.
The intervention of the mediator can be summed up by the following phrases:
- the opening statement;
- summary of the facts and the exchange of opinions;
- the search for the companies' interests;
- the choice and evaluation of possible solutions;
- conclusion by means of a written agreement.
The final proposal may be accepted or rejected by the parties and, under no circumstances, will either the mediator or the OHIM be responsible for the legality or breach of the same.
It is also possible for the mediator to present a report stating that, despite the efforts made, it has been impossible for the parties to reach an agreement and that appeal process should be resumed.
The request for mediation has no costs and each party, unless there is an express agreement to the contrary, will assume its own costs.