Mediation in Trademark Disputes — and What Carl Rogers Taught Lawyers

Litigation is good. Avoiding it is better.

Let’s be clear: going to court is sometimes exactly the right move. French courts grant injunctions, damages and loser-pays costs, and a credible threat of litigation is often what brings the other side to the table at all. We litigate, and we say so without embarrassment.

But a judgment is a blunt instrument. It takes a year or two to obtain, it resolves only the legal layer of the conflict, it is public, and there is always residual uncertainty in how a judge will rule, for both sides. A judgment can also be a solution that does not solve anything: if you must go back before the judge every few months to enforce your rights, you have won a case and kept a problem.

Mediation ends the dispute on the parties’ own terms. Each party speaks freely and confidentially, can step out of the process at any time, and nothing becomes binding without its full agreement: the exact opposite of the uncertainty of a ruling. In France, the resulting settlement can then be made enforceable by court approval (homologation). Resolved for good, usually faster and at lower cost.

Mediation finds solutions no judge can order

A judge can forbid, and a judge can award damages. That is roughly the whole toolbox. Mediation is not bounded that way, because it treats the dispute as a business problem that happens to have a legal shape.

One example from practice: an infringement case resolved in mediation where the defendant agreed to purchase a yearly volume of the plaintiff’s goods. No court could have ordered that — yet it turned an infringer into a customer, and a lawsuit into a commercial relationship. Coexistence deals work the same way: rather than litigating an overlap that often exists mostly on paper, the parties organize how their marks live side by side.

What mediation does for the client — and the lawyer

Mediation goes deeper than pleadings ever do. In the process, the client explains its business, its constraints, and what it actually needs, not only its legal position. The lawyer finally sees the whole picture instead of solving legal questions in isolation. Emotional issues (and most long disputes have them) get dealt with instead of buried.

For the client, that means advice that fits the business. For the lawyer, it means a different role: the person who solves the problem, not just the litigator or the legal adviser. Hours spent in mediation are intense, transparent to the client, and usually among the most efficient of the whole case; the attorney sits at the table and holds the pen when the agreement is drafted.

There is a quieter benefit too: judges are human beings. Counsel known for genuinely trying to settle is heard differently when a case truly has to be tried.

The Carl Rogers method: congruence, empathy, respect

The most useful thing taught in mediation training is not a legal technique at all. It is the communication theory of Carl Rogers, the American psychologist behind the person-centered approach. Transposed to negotiation — a transposition, not orthodox Rogers — it rests on three conditions:

• Congruence. Be genuinely yourself. When the other side asks for something you find very hard to accept — or even to listen to — say so, politely: “I have a hard time with this.” Naming what is happening in the room is more disarming than masking it.

• Empathy. Work to see the situation from the other party’s perspective. It explains reactions that otherwise look irrational, lets you anticipate the next move, and prevents the avoidable mistakes that harden a conflict.

• Respect. Rogers’ own term is unconditional positive regard; in a business relationship, respect is the workable version. It simply means treating the person across the table as a human being whose view is worth hearing — including when you are there to disagree with it.

Three rules — be authentic, act with empathy, show respect — and a remarkable number of “impossible” discussions become merely difficult ones.

Communication is more than words

One more lesson from the mediator’s toolbox: people do not all receive information the same way. Some are visual: with them, write things down, use the flipchart. If your letters go unanswered, try the phone. Be attentive to physical distance and greetings; some people shake hands, some prefer not to. Keep the aftershave discreet; a strong scent can feel like an invasion. And do not underestimate a lunch invitation at the right moment of a negotiation.

None of this is decisive on its own. All of it, together, is how agreements actually get reached.

Where this fits a trademark dispute

Every stage of a trademark conflict has an off-ramp: the cooling-off period in an EUIPO opposition, the exchange that follows a cease-and-desist letter, the doorstep of a trial — and even mid-litigation, since French judges can propose mediation at any point. A well-run dispute keeps the courtroom available as leverage, and the settlement table as destination.

At GOMIS & LACKER we do both, by design: we plead trademark cases before the French and EU courts, and Julien Lacker is a trained mediator alongside his litigation practice. That combination is the point — the strongest position at any settlement table is being genuinely ready to try the case, and genuinely ready not to. If that is the kind of counsel your dispute needs, talk to us. (It is also why, in our little arcade game, negotiating with the infringer pays better than shooting at him.)

Written by Julien Lacker, attorney (avocat) admitted to the Paris Bar, certified specialist in intellectual property law and in information-technology law. Last reviewed: August 2026.