The Fugitive Identity of Mediation by De Girolamo Debbie;

Author:De Girolamo, Debbie;
Language: eng
Format: epub
ISBN: 1170318
Publisher: Taylor & Francis Group

Case Study 9: The fishing logo

The case

The Claimant, Angler Co-Operative Ltd, had been the exclusive licensee of the Defendant, HighLander Fishing Co. Ltd logo, for the manufacture and supply of its fishing equipment and sporting apparel. A well-known and respected angler had developed the brand, and as such, products bearing his logo were popular and sold well in the worldwide marketplace. Angler Co-Operative had been the sole licensee of the logo for over 15 years pursuant to a written licence agreement (the ‘Agreement’) which provided for, among other things, the payment of royalties on the sale of the products. The Agreement had been automatically renewed after its initial term; however, the royalty calculation soon became an issue between the parties.

In its action, Angler Co-Operative alleged that as a result of the inability to come to terms on the calculation of the royalty, it decided to manufacture fishing equipment and sporting apparel under its own private brand. When it learned that HighLander had given the logo’s licence rights to another company, Angler Co-Operative alleged that HighLander was in breach of the Agreement, which prevented the licensing of the logo during an 18-month sell-off period. Angler Co-Operative further alleged that the new licensee had advised Angler Co-Operative’s major supplier that Angler Co-Operative was not permitted to use the logo, which led to the supplier’s refusal to supply necessary products to Angler Co-Operative. Angler Co-Operative sought injunctive relief to permit its continued use of the HighLander brand. It alleged that it had a period of time after the termination of the Agreement within which to continue selling products bearing the HighLander logo, and also the right to continue manufacturing products that had been ordered prior to the termination of the Agreement. The injunction was denied.

HighLander defended the claim on the basis of estoppel regarding the appointment of the new licensee. It alleged that Angler Co-Operative was aware of the appointment and consented to it. As for the continued use of the logo by Angler Co-Operative following the termination of the Agreement, it was HighLander’s position that Angler Co-Operative had the exclusive right to manufacture for a 12-month period following the termination but not for an 18-month period, as sought by Angler Co-Operative. It also alleged that orders submitted prior to the termination date were not legitimate. It counter-claimed, alleging trademark infringement and passing off. It also sought payment of outstanding royalty fees, and accounting and domain name transfer.

The parties had engaged in settlement negotiations after the judicial hearing for injunctive relief. Offers and counter-offers had been exchanged, but no settlement had been reached. A mediation was scheduled to deal with the impasse. The party representatives were confident, charming businessmen with strong views and personalities.

Discussion with the Mediator about the case prior to the mediation day

In a telephone conversation with the Mediator prior to the mediation, the Mediator commented on the mediation. The mediation looked, he said, “straightforward. The issues are not complex. It is a pure contractual dispute. Yes, there will be views on interpretation but the number of issues is not great.

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