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8 Dicembre 2021
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COOLING OFF

THE PLEDGE, THE REVIEW, THE AWARD

The origin.
Cooling Off, in an juridical sense, means the period (even cooling off of the souls) of reflection left to the parties before accepting a final contract offer or choose the path of litigation. The expression is known in the Industrial Property to define the time of the opposition to the application for registration of a Community trade mark, in which the parties have the opportunity to reach an agreement and therefore can terminate the procedure without incurring additional costs: the Cooling Off ends two months after the notice of opposition and eligibility may be extended by 22 months, up to a total of 24 months, at the expiration of the period of reflection , opens the adversarial part of the opposition proceedings.

The pledge. The Cooling Off, designed developed and proposed by MFSD, is inspired by the Anglo-Saxon models, known overseas for at least three decades of Alternative Dispute Resolution (ADR) Pledge, adapted to the particular sector of the Italian Intellectual Property. Abroad, most of the time, it is a public statement in which the person who signs (corporate, industrial property consulting, law firms, government agencies, etc.) states to adopt a systemic approach (where possible) the settlement of the dispute, exploring the advantages and disadvantages, adequacy or otherwise of the forms or alternative procedures or rather complementary to the Court (Alternative Dispute Resolution) or state litigation in general. Even though in different forms, the pledges, commitments of ADR, have been promoted in many countries: USA, UK, France and Singapore.

The concept was developed in 1980 by the International Institute for Conflict Prevention & Resolution (CPR), an entity nonprofit U.S. leader in alternative dispute resolution, with its corporate policy statement on alternatives to litigation. The 'CPR Pledge' is now adopted by more than 4,000 companies and 1,500 law firms which undertake to consider a procedure for settling out-of-court, before an action. Today, the CPR promotes the so-called 21st Century Corporate ADR Pledge, an evolved form of public declaration of ADR Policy but very similar to the previous ones and now becoming available.

Other examples are:

  • The ADR Pledge in the UK
  • The Charte de la médiation inter-entreprises in France
  • The Charter of the Singapore International Mediation Center
  • INTA ADR Pledge for trademark owners.

The most recent European initiative is underway in Poland and was brought to the Council Civic and ADR approved by the Ministry of Justice. On March 4th 2013, was officially launched at the conference in Warsaw with the participation of over fifty large firms and lawyers' organizations.

Even MFSD, drawing on international and European practice more effective in the prevention and resolution of disputes outside the courts, studied, developed and designed an ADR Pledge, in fact Cooling Off, dedicated and adapted to the Italian Industrial Property, intended for owners or representatives of industrial property rights and to train and enhance their aptitude non-confrontational, without sacrificing the appeal to the Judge. The concept and inspiring element is that of a guarantee system of continuous evaluation and quote the use of forms of extra-judicial resolution of disputes in the field of Industrial and Intellectual Property intended to holders of prior rights in signs or professionals (IP agents and lawyers).

The review and the award. Thus was born Cooling Off: a program, and then a set of actions (it is also an international journal and an award dedicated to those who distinguished himself in spreading the culture of consensual settlement of the conflict and methods of alternative resolutions to the court, which shall bear the same name) that aims to promote a culture or at least encourage and cultivate a sensitivity to the prevention and dispute resolution in the field of IP. The program is based on a public statement of commitment and guarantee, with which the company and/or professional fitting agrees, in advance, to assess, where this is appropriate advice, with its counterpart (for companies) and the customer (the professional) means, procedures and methods (e.g., mediation, domains disputes resolution, arbitration, expertise, etc.) alternative to litigation before the judge or the competent administrative authority.

The commitment to seek an alternative to litigation has always existed, even in Italian daily IP professionals (agents and lawyers) and businesses in this sector seek or try to find consensual solutions intended to prevent or solve litigation.

The need. And then there was need of a guarantee, a commitment, a public statement, the adoption of a specific policy for groped to settle out of court (where practicable) a dispute over a right of ownership industrial and intellectual property ? What is the quid pluris ?

Why, nevertheless, in Italy adn in EU the search for a negotiated solution is still instinctive, occasional, spontaneous, conscious or not planned or structured, then left to the good will or the attitude of each of the protagonists: owners of the undertakings, IP in-house counsel or agents or lawyers outside the firm at the center of a controversy.

Cooling Off for enterprises is a visible sign of recognition, the adoption of voluntary, conscious, and convinced of a specific public policy of cost containment and rationalization of human resources, and the index of a particular sensitivity in the consensual, non-adversarial, cost-controlled and fast dispute resolution.

While for professionals is a distinctive feature, the message of a different professional approach to offer customers direct, where the negotiation assisted by the professional will be ineffective or rejected or fails, an alternative or complementary to always possible to appeal to the state litigation, showing sensitivity and attention to the subject (now hotter than ever) the cost-effectiveness in the management of a dispute or the duration of the process.

The advantages. The Pledge gives a number of benefits reserved to the members and the ability to immediately check if your contact is available or likely to solutions assisted by a neutral third party, consensual and outside of the Court, at a cost controlled by the parties to the dispute. For more information continues to visiting on this website the section 'Pledge'.

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Last modified: 27.10.13, 17:28

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