Vondran Legal® - Alternative Dispute Resolution in eSports and Video Gaming Industries. Call us at (877) 276-5084 for IP legal counsel.
Introduction
The video gaming industry has experienced rapid growth in the past few years, ultimately overcoming the film and music sectors. Recent years have also witnessed a proliferation of gaming competitions, more frequently referred to as esports. The importance of this industry, in terms of consumer popularity; revenue generation; and their value in the global economy, is likely to continue to grow. Nevertheless, with this rapid growth comes an increase in legal disputes, including those related to intellectual property (IP) disputes.
One time and cost-efficient alternatives to court litigation, ADR mechanisms, such as mediation or arbitration, offer parties and their lawyers the opportunity to adopt practical and satisfactory solutions. ADR allows parties to select a mediator, arbitrator or expert with legal and technical expertise. It also provides a neutral forum in which disputes, sometimes involving parties from multiple jurisdictions – can be resolved through a single procedure. Moreover, ADR can be set up in a way to allow for efficient enforcement of the outcome.
General Overview
WIPO's ADR Program for Video Games and E-Sports: A Game-Changing Initiative
According to their website WIPO arbitration and mediation center
"The World Intellectual Property Organization (WIPO) has recently introduced an innovative Alternative Dispute Resolution (ADR) program aimed at addressing the unique challenges faced by the video game and e-sports industries. This initiative is particularly timely given the exponential growth of these sectors, which now surpass traditional entertainment industries in market size and complexity. "
Why ADR for Video Games and E-Sports?
Video games and e-sports are characterized by their rapid technological advancements and global reach, creating a breeding ground for complex intellectual property (IP) disputes. These disputes often involve multiple jurisdictions, cross-border partnerships, and a mix of tangible and intangible assets. Traditional litigation may not be the most efficient or effective means of resolving such disputes due to its slow pace and high costs.
WIPO's ADR program offers a tailored solution through mediation, arbitration, expedited arbitration, and expert determination. These methods provide a more efficient, cost-effective, and flexible alternative to court litigation, allowing parties to resolve disputes swiftly while maintaining their business relationships.
Key Features of the WIPO ADR Program
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Efficiency and Speed: The program is designed to resolve disputes within a significantly shorter timeframe compared to traditional court processes, with some cases being resolved within 24 hours. This is crucial in an industry where product cycles are short and timing is critical.
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Comprehensive IP Coverage: The program addresses a wide range of IP issues, including copyrights, patents, trademarks, trade secrets, and more. It also covers other commercial disputes related to IP licensing, technology transfer, and software agreements.
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Global Reach: Although based in Geneva, the program is designed to handle disputes globally, recognizing the international nature of the video game and e-sports industries. This global approach ensures consistency in legal outcomes across different jurisdictions.
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Cost-Effectiveness: As a non-profit organization, WIPO offers a competitive and accessible fee structure, making ADR services affordable for smaller entities and start-ups.
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Expertise and Neutrality: WIPO maintains a list of experts with legal, business, and technical expertise in the video game and e-sports sectors. Parties can choose mediators and arbitrators who are neutral and independent, ensuring fair and impartial dispute resolution.
Practical Scenarios and Applications
The WIPO ADR program has already seen practical applications in various scenarios:
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Trademark Licensing: Disputes over the use of trademarks within video games, such as a European software company and a retail chain disputing a trademark license.
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Copyright Infringement: Issues related to unauthorized streaming of e-sports competitions, where mediation helped transform infringement cases into licensing agreements.
Summary of WIPO Video Games and esports case examples
WIPO provides a few examples of types of cases that may be ripe for WIPO arbitration:
- A copyright infringement dispute between a North American company and an Asian company. Both parties were engaged in developing and publishing video games. Proceedings were pending before national courts and the parties agreed to refer their dispute to WIPO Mediation.
- A dispute between an Asian video game company and a European developer related to copyright infringement, payment of royalties and blocking of the unauthorized streaming of esports competitions.
- A dispute related to copyright infringement over the scenario of a video game between an Asian video game company and a North American multinational technology company.
- A dispute between a video game and online entertainment company and an online gaming company. The requesting party accused the respondent of actively advertising and making available the download of an unauthorized copy of the requesting party's video game.
- A copyright infringement dispute over an online video game between a European video game production and publishing company and another company.
- A dispute related to the use of IT in the context of the video game industry between a European video game development company and an Asian company.
- A dispute between a European software development company and a European retail chain related to whether the requesting party should obtain a trademark license to use a logo inside a video game.
Potential Participants
The WIPO websites also list parties that may be involved in eSports or video game disputes:
- associations
- companies
- esports tournament organizers
- esports tournament participants
- national trade associations
- online content-sharing service providers (OCSSPs), including platforms professional and amateur players
- service providers
- software developers
- start-up companies
- telecommunication providers
- video game developers
- video game publishers
Potential Cases
Per the WIPO website, here are some typical claims that may be arbitrated:
- copyright infringement (e.g., game storyline, gameplay)
- IP infringement
- IP licensing
- False and misleading advertising
- music infringement
- Copyright royalty disputes
- Software disputes
- Technology transfer disputes
- Trademark and domain disputes (e.g., game logos)
- Unfair competition
Sample contract clauses
WIPO offers sample clauses your company can use to compel arbitration or mediation in the event of a dispute involving some of the types of issues mentioned above.
Mediation Clause
Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments to this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to mediation in accordance with the WIPO Mediation Rules. The place of mediation shall be [specify place]. The language to be used in the mediation shall be [specify language].
Arbitration Clause
Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments to this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules. The arbitral tribunal shall consist of [a sole arbitrator] and [three arbitrators]. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim shall be decided in accordance with the law of [specify jurisdiction].
Expedited Arbitration Clause
Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments to this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim shall be decided in accordance with the law of [specify jurisdiction].
They also have a custom clause generator
WARNING: Make sure to seek the assistance of an IP video game or eSports attorney before relying on or using these clauses above, or seeking to create your own custom clause.
Miscellaneous
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Efficiency and Accessibility: Oscar emphasized WIPO's commitment to providing quick and accessible dispute resolution options. The program's fast-track options can resolve disputes in as little as 24 hours.
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Global and Comprehensive Approach: The program is designed to handle disputes across multiple jurisdictions, reflecting the international nature of the video game and e-sports industries. It covers a wide range of IP issues, including copyrights, patents, trademarks, and trade secrets.
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Collaboration and Innovation: WIPO collaborates with various stakeholders, including the Esports Integrity Commission (ESIC), to ensure that their ADR solutions are both innovative and tailored to the specific needs of the industry. They are also exploring the use of blockchain technology to facilitate dispute resolution processes.
Resources and Further Reading
To dive deeper into the specifics of WIPO's ADR program and its applications in the video game and e-sports industries, the following resources are highly recommended:
These resources provide detailed insights into the structure, benefits, and real-world applications of WIPO's ADR program, offering valuable information for stakeholders in the video game and e-sports industries.
Contact Vondran Legal®
If your company needs help with a WIPO arbitration dispute, whether a copyright, trademark, software, breach of contract or domain dispute, call us to discuss representation. In many cases, we can set a low flat rate (a predictable one time fee). We have been resolving IP, Technology and entertainment disputes since 2004 and have appeared in over 500 federal court IP litigation cases. Call us at (877) 276-5084 or fill out our contact form.
