As part of its tailored WIPO Alternative Disputes Resolution (ADR) Services, the WIPO Center provides dispute resolution advice and case administration services to facilitate contract negotiations between parties or to help parties resolve video games and esports disputes, without the need for court litigation.
Video Games and esports Disputes
The video gaming industry has experienced rapid growth in the past 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 potential disputes, including those related to intellectual property (IP) disputes.
As 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.
Summary of WIPO Video Games and esports case examples
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.
WIPO ADR Services for Video Games and esports Disputes
The WIPO Mediation, ( Expedited) Arbitration and Expert Determination Rules are well suited for video games and esports disputes. The WIPO Rules are designed for disputes related to both intellectual property and technology, as they take into account the need for flexibility in rapidly changing sectors. In particular, all WIPO Rules have strict confidentiality provisions, including provisions regarding disclosure of trade secrets when it comes to the (Expedited) Arbitration Rules.
Where appropriate and in light of the needs of the parties and regulatory requirements, the WIPO Center can provide guidance on the appropriate ADR procedures, namely on the WIPO Rules, applicable fees, use of ADR clauses, and related administrative services (for example, the provision of administration tools, video conferencing, and document management.
WIPO Open-ended List of Experts Specialized in Video Games and esports
To a large extent, effective proceedings depend on the quality of the mediator, arbitrator, or expert. The WIPO Center maintains an international open-ended List of Experts, which includes mediators, arbitrators, and experts from around the world combining legal, business, scientific, and/or technical expertise in the video games and esports sector. In cases conducted under the WIPO Rules, Parties are not only able to appoint experts from this List, but can also select mediators, arbitrators, or experts from outside the WIPO List of Experts.
Upon request, the WIPO Center provides procedural guidance to parties seeking to resolve their disputes under the WIPO Rules, including advice on the drafting and adaptation of ADR clauses in video games and esports-related contracts and submission agreements. The WIPO Center also assists parties in bringing cases to WIPO ADR by, for example, acting as a communication channel between the parties where one party is reluctant to use ADR.
The WIPO Center also organizes training and workshops on mediation, arbitration and related topics.
WIPO Dispute Resolution Board for Video Games and esports Disputes, including Model Clauses
WIPO Dispute Resolution Board (DRB) is a standing board of members who is kept informed of a Video Games or esports competition or project development and whose role is to assist parties with managing minor and more significant disputes as they arise. The WIPO DRB procedure is a procedure designed to manage long-term collaborations.
Key features and benefits of a DRB are as follows:
Efficiency DRBs save time as their knowledge of the project allows them to act quickly in resolving disputes as “reading-in” time is significantly reduced.
Appointment and composition DRB members would be appointed at the start of the collaboration or contract. DRB members may include:
the WIPO mediator who facilitated the contract negotiation;
the WIPO expert who reviewed confidential information during the pre-contract stage;
any other WIPO expert.
Powers the parties may agree whether the DRB issues binding or non-binding determinations.
Fees the fees of the DRB members would be fixed by the WIPO Center in consultation with the parties and the DRB members. In addition, parties may choose to pay the DRB members a monthly retainer in consideration for remaining informed of the project’s development and for retaining their impartiality throughout the duration of the project.
These procedures may be used in conjunction with WIPO (Expedited) Arbitration where parties cannot reach a mediation agreement or wish to enforce or challenge a DRB determination. Parties may choose whether arbitration may only commence (1) within a specified period of the DRB issuing its determination or (2) at the termination of the contract.
WIPO Arbitrators would be appointed from the open-ended WIPO List. If parties used WIPO Mediation or WIPO DRB to facilitate contract negotiation or to resolve disputes, the parties may be able to use their experience of the WIPO Mediation or WIPO DRB process to narrow the scope of the arbitration.
DRB procedures are available to parties through the following model contract clauses:
The WIPO Center can provide assistance and support to parties if they wish to use or integrate any of their own internal systems or procedures into the ADR process.
Collaboration with Concerned Stakeholders and Entities
The WIPO Center collaborates with stakeholders in the area of video games and esports to focus on how to provide effective ADR procedures that prioritize time- and cost-efficient dispute resolution, while preserving business relationships in this industry.
The WIPO Center is available to collaborate with other interested stakeholders.
