Litigation is costly and uncertain, particularly when subjective concepts like consumer perception are involved. Mediation allows both sides to explore creative, business-focused solutions—such as phased redesigns, coexistence agreements, or packaging adjustments—without the constraints of a courtroom. This flexibility often results in quicker, more commercially reasonable outcomes.

Trade dress includes the visual appearance of a product or its packaging, as well as certain aspects of store layout, website arrangement, and branding presentation. To be protectable, the trade dress must be distinctive and non-functional. Mediation helps parties evaluate whether the disputed design meets these legal thresholds and how consumer perception influences the dispute.

Yes. Mediation is private and confidential. Statements made during mediation cannot be used later in litigation, preserving both strategic and commercial interests.

Mediation reduces risk, protects brand identity, preserves commercial opportunities, and allows parties to control both outcome and cost. It also prevents negative publicity and the unpredictability of jury-based visual comparison cases.

Experts are optional. Many mediations proceed effectively with attorney presentations and visual comparisons. However, parties may choose to use experts to discuss consumer impressions, prior art, or design distinctiveness.

Mediation allows parties to address not just the accused design, but the entire design ecosystem — related products, future concepts, packaging, or branding elements. This holistic approach often leads to more durable resolutions than issue-by-issue litigation.

Yes. Many courts encourage mediation for design patent cases because they can be fact-intensive and expensive. Mediation is also effective early in litigation, before claim construction or expert analysis dramatically increases costs.

Absolutely. Mediation is one of the best ways to negotiate redesign timelines, scope of changes, temporary allowances, and market withdrawal strategies. These practical outcomes are often unavailable in court.

Yes. Mediation allows parties to explore the basis for similarity or distinction through structured dialogue, comparisons, and review of prior art. This often reveals gaps in understanding or alternative perspectives that litigation may not address.

Design patent infringement is evaluated under the “ordinary observer” test, which asks whether an ordinary purchaser would find the accused product substantially the same in overall appearance as the patented design. Because this test relies heavily on visual impressions, mediation provides an ideal environment to discuss consumer perception outside the rigidity of litigation.

Not necessarily, but it can be helpful. Mediation welcomes parties with or without attorneys; however, because copyright law is complex, many participants choose to consult counsel outside of the mediation session. The mediator does not represent either side. We do not provide legal advice to mediation participants.

Often yes. Many settlements include:

• retroactive licenses

• limited future-use licenses

• one-time payment for ongoing usage

• removal + non-use agreement

Mediation gives parties flexibility that courts cannot offer.

Yes. Mediation is fully confidential. Statements, documents, and settlement negotiations cannot be disclosed or used in court. This protects both creators and businesses from reputational harm.

Yes. If the parties resolve the dispute, mediation typically concludes with a written settlement agreement specifying:

• payment terms (if any)

• permitted usage or removal requirements

• future licensing rights (if any)

• confidentiality

• release of claims

This provides finality and prevents the dispute from resurfacing.

Mediation is significantly more cost-effective. Litigation requires months or years of attorney time, federal court filings, expert fees, and discovery. Mediation replaces all of that with a structured negotiation process, often completed in a single session for a predictable, limited fee.

Most cases resolve quickly—often within half a day, or even during the initial session. Because the dispute usually involves a single asset and narrow factual questions, mediation avoids the complexity and expense of litigation.

Removing the image can be a smart risk-management step. However, removal does not eliminate liability and care should be used to preserve evidence. Mediation allows parties to discuss whether removal was prompt, how long the image was displayed, and whether the removal helps reduce potential damages. The process for how the removal is achieved can also be discussed at mediation.

Yes. Many image disputes involve DMCA takedowns on websites, blogs, e-commerce platforms, or social media.

Mediation can help parties negotiate:

• reinstatement

• partial removal

• licensing terms

• revised usage rights

• future permissions

This avoids further platform disputes or account strikes.

Responsibility can depend on the agreement you had with the freelancer. In mediation, both sides can analyze whether the contractor granted proper rights, whether warranties apply, and whether the copyright owner’s claim has merit. These vendor issues are often resolved much more efficiently in mediation than in court.

Image enforcement companies often issue demand letters seeking settlement amounts.

Mediation gives both parties a neutral setting to evaluate:

• whether the use was commercial

• whether licensing existed

• whether the requested amount is fair or inflated

• how litigation would impact each side

This process often results in faster, more cost-effective resolutions.