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International Trademark Dispute Resolution

In this comprehensive article, readers will gain insight into the complex world of international trademark dispute resolution. The article covers various aspects, starting with the definition and importance of trademarks, then delving into the basis of international trademark disputes, and discussing the role of international treaties. Next, the methods of dispute resolution are explored, including court litigation and alternative dispute resolution methods like arbitration, mediation, and expert determination. Furthermore, the article highlights key international dispute resolution bodies, reviews some landmark cases, and concludes with best practices and recommendations for avoiding trademark disputes.

International Trademark Dispute Resolution

Definition and Importance of Trademarks

A trademark is a distinctive sign or symbol that represents a company, product, or service, and distinguishes it from others in the market. The basis for a trademark can be words, phrases, logos, shapes, colors, or a combination thereof. The purpose of a trademark is to prevent customer confusion and protect the goodwill and recognition that businesses have built around their brands.

Trademarks are important because they serve as a means of identification for consumers, allowing them to instantly recognize and associate a product or service with a certain manufacturer or provider. They also help in promoting fair business competition by preventing the unauthorized use of another's mark, which could otherwise lead to confusion or deception. Furthermore, trademarks act as valuable assets for businesses, as they can be licensed, sold, or used for securing loans.

Basis of International Trademark Disputes

International trademark disputes arise when an entity in one country claims infringement against another entity in a different country. Such disputes often occur when one party uses a mark that is too similar to the other's registered mark, causing confusion, deception, or dilution of the original mark. Another common source of disputes involves the unauthorized use of well-known marks, causing an unfair advantage to the infringing party.

The increasing globalization and expansion of trade have led to a rise in international trademark disputes. Companies seeking to enter new markets must ensure that their brands are protected in multiple jurisdictions, as trademark registration and protection are typically territorial in nature. Differences in trademark laws, linguistic and cultural factors, and varying levels of enforcement further complicate the resolution of cross-border disputes.

Types of Trademark Dispute Resolution

There are primarily two avenues for resolving international trademark disputes: litigation and alternative dispute resolution (ADR).

  1. Litigation: National courts have jurisdiction over trademark disputes within their territories. In the case of cross-border disputes, it can be challenging to determine which court should hear the case. Factors such as the location of the infringement, the domicile of the parties, and any agreements between the parties are often considered. Litigation can be time-consuming, costly, and complex, particularly in cases involving multiple jurisdictions.
  2. Alternative Dispute Resolution (ADR): ADR includes methods like arbitration, mediation, and expert determination. These methods are often quicker and more cost-effective than litigation. Parties involved in a dispute can decide which ADR method to use and can choose the rules, venue, and language of the proceedings.

i) Arbitration: In arbitration, the disputing parties select a neutral third party or panel, who hears the evidence and arguments and makes a binding decision. Arbitration is particularly well-suited for international disputes, as the enforcement of foreign court judgments can be challenging.

ii) Mediation: Mediation is a voluntary and flexible process where a neutral third party facilitates communication between the disputing parties and assists them in negotiating a mutually acceptable resolution. Mediation can lead to creative settlements and helps maintain business relationships.

iii) Expert Determination: Expert determination involves appointing an expert in the subject matter of the dispute, who reviews the facts and provides a binding decision based on their expertise.

Role of International Treaties

International treaties play a crucial role in harmonizing trademark laws, international trademark protection, procedures, and dispute resolution mechanisms across jurisdictions. Some of the key international treaties related to trademark disputes are:

  1. Paris Convention for the Protection of Industrial Property: The convention's provisions include national treatment, right of priority, and protection of well-known marks, which are helpful in addressing international trademark disputes and provide a foundational framework for other international treaties.
  2. Madrid System for the International Registration of Marks: This system, administered by WIPO, allows trademark owners to register their marks in multiple countries through a single application. It streamlines the trademark registration process and provides a central forum for maintaining and managing international registrations.
  3. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS): As a part of the World Trade Organization (WTO), the TRIPS agreement sets minimum standards for trademarks, including protection, enforcement, and dispute resolution mechanisms. It also establishes the dispute settlement body of the WTO, which can be invoked in cases of trademark-related disputes between member states.
  4. WIPO Arbitration and Mediation Center: The center provides services for the resolution of intellectual property disputes through ADR methods, including domain name disputes under the Uniform Domain Name Dispute Resolution Policy (UDRP).

In conclusion, international trademark disputes pose numerous complexities due to varied laws, cultural differences, and enforcement mechanisms. The effective resolution of such disputes requires understanding the players involved, the available avenues for resolution, and the relevant international treaties. By employing ADR methods and relying on existing treaties, businesses can better navigate the challenging landscape of international trademark disputes.

International Treaties Governing Trademark Dispute Resolution

Trademark disputes can arise when two parties claim rights over the same or similar trademark, leading to the potential infringement of rights and creating confusion among consumers. To address such challenges and facilitate the resolution of trademark disputes, several international treaties have been established. These treaties provide a robust framework for governments, businesses, and individuals to settle trademark disputes fairly and expeditiously.

Paris Convention for the Protection of Industrial Property

The Paris Convention for the Protection of Industrial Property, adopted in 1883, is one of the earlier international agreements governing trademark dispute resolution. Administered by the World Intellectual Property Organization (WIPO), the Paris Convention is one of the fundamental treaties providing guidelines for the protection of intellectual property across borders, including trademarks.

The Convention establishes a set of minimum standards for trademark protection that each of its member countries must adhere to. One of the central principles of the Convention is the 'right of priority,' which allows an applicant from a member country to file a trademark application in another member country within six months of filing the original application in their home country. This ensures that the priority date of the original application is maintained.

In case of a dispute, the Paris Convention does not provide an explicit dispute resolution mechanism. However, it does offer certain general guidelines for the protection of trademarks and mandates that member countries have a legal framework for the enforcement of intellectual property rights. Each member country's national laws would govern the dispute resolution process, with the Convention's rules providing the baseline for the protection of trademarks and the resolution of conflicts.

Madrid Agreement and Protocol

The Madrid Agreement and its complementary treaty, the Madrid Protocol, establish an international system for the registration of trademarks. Administered by WIPO, this system aims to simplify the process of trademark registration in multiple jurisdictions. Under the Madrid system, a trademark applicant can file a single application and request protection in several member countries simultaneously.

In terms of dispute resolution, the Madrid system does not confer any substantive trademark rights. It is merely a procedural mechanism for the international registration of trademarks. The actual scope and enforcement of trademark rights fall within the jurisdiction of each member country's national laws.

In case of a dispute arising from a Madrid application or registration, the concerned parties must resolve it through national courts or intellectual property offices, following the domestic procedures and laws of the country concerned. Alternatively, the parties may also opt for alternative dispute resolution methods like arbitration or mediation, provided both parties agree to such means.

TRIPS Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a part of the World Trade Organization (WTO) agreements. Adopted in 1994, the TRIPS Agreement provides a comprehensive framework of minimum standards for the protection of intellectual property rights, including trademarks, among its member countries.

TRIPS builds upon the existing international treaties and conventions, including the Paris Convention and the Madrid system, and requires WTO members to adhere to these minimum standards in their national intellectual property laws. It also covers enforcement measures, dispute settlement provisions, and a system for reviewing the implementation of the agreement.

In the context of trademark disputes, the TRIPS Agreement obligates member countries to have a domestic legal framework for the fair and impartial resolution of disputes. Furthermore, it introduces the concept of 'well-known marks' and provides enhanced protection for such marks, thereby preventing the misuse or infringement of well-known trademarks in member countries.

Additionally, the TRIPS Agreement has a Dispute Settlement Understanding (DSU), which is a multilateral mechanism to address conflicts arising from the application or interpretation of the WTO agreements, including intellectual property issues. Parties engaged in a trademark dispute may use the DSU process to resolve their disagreements, but such proceedings would be between the member countries, rather than the private entities involved in the trademark dispute. The actual enforcement of the dispute resolution outcome remains the responsibility of the member country in which the dispute originated.

Methods of International Trademark Dispute Resolution

Court Litigation

Court litigation is the traditional method of resolving trademark disputes. It involves a formal process wherein parties present their case before a judge or jury in a court of law. The court will then apply the applicable law and issue a binding decision. International trademark litigation typically takes place when trademark disputes are between parties from different countries or when the disputed trademark is internationally registered.

In international trademark disputes, the jurisdiction of the court may be determined by several factors, including the domicile or residence of the parties, the place where the trademark is registered or used, the place where the alleged infringement occurred, and applicable international agreements governing the dispute.

Advantages and Disadvantages of Court Litigation

Advantages of court litigation in international trademark disputes include the following:

  1. The decision of the court is legally binding and enforceable, providing certainty and finality to the outcome of the dispute.
  2. Court litigation allows for the discovery of relevant evidence, which may be necessary to establish the infringement of trademark rights or the validity of the trademark registration.
  3. Courts may award remedies, such as damages or injunctions that may not be available in alternative dispute resolution methods.

Disadvantages of court litigation include the following:

  1. Litigation can be time-consuming and costly, especially in international disputes where multiple jurisdictions may be involved.
  2. Decisions rendered by courts in one country may not be recognized or enforceable in another country unless specific enforcement procedures are followed or an international agreement applies.
  3. The public nature of court litigation may expose confidential information and potentially harm the reputation of the parties involved.

Alternative Dispute Resolution (ADR)

ADR refers to methods of resolving disputes without resorting to the courts. It is increasingly used in international trademark disputes due to its typically faster, cheaper, and more flexible process compared to court litigation. The most common forms of ADR include arbitration, mediation, and expert determination.


Arbitration is a binding method of dispute resolution, where parties agree to submit their dispute to an independent and neutral third party, known as the arbitrator or arbitration panel. The arbitrator hears the arguments and evidence, applies the relevant law, and issues a binding decision, called an arbitral award. Arbitration clauses are frequently included in contracts between parties from different countries or involving international trademarks.

Advantages and Disadvantages of Arbitration

Advantages of arbitration include the following:

  1. Arbitral awards are generally easier to enforce internationally due to widely accepted conventions, such as the New York Convention.
  2. Arbitration is often faster and less expensive than court litigation.
  3. Arbitration allows parties to select an arbitrator with specific expertise in trademark law.
  4. The process can be more flexible, allowing parties to tailor the procedural rules and timeline.

Disadvantages of arbitration include the following:

  1. The limited grounds for challenging or appealing an arbitral award.
  2. The possibility of forum shopping or selecting an arbitration venue that may be more favorable to one party.
  3. Some arbitration institutions can be expensive, reducing the cost advantage compared to court litigation.


Mediation is a non-binding process where a neutral third party, called the mediator, facilitates communication between the disputing parties and assists them in reaching a mutually acceptable settlement. Unlike arbitration or court litigation, the mediator does not issue a binding decision, and the outcome is entirely voluntary.

Advantages and Disadvantages of Mediation

Advantages of mediation include the following:

  1. Mediation is typically less costly and less time-consuming than court litigation or arbitration.
  2. The process is non-adversarial, focusing on cooperation and collaboration, which can help preserve business relationships.
  3. Mediation offers confidentiality, which can protect sensitive information and reputations.
  4. Parties have control over the outcome and can craft creative and tailored solutions to their dispute.

Disadvantages of mediation include the following:

  1. The outcome of mediation is not legally binding unless the parties enter into a legally enforceable settlement agreement.
  2. Mediation may be ineffective if one party is unwilling to cooperate or compromise.
  3. Lack of expertise of the mediator in trademark law may result in less informed and less satisfactory settlements.

Expert Determination

Expert determination is a process where parties agree to submit their dispute to an independent expert in the relevant subject matter. The expert analyzes the facts and issues, applies the relevant law and industry practices, and issues a binding or non-binding decision, depending on the parties' agreement.

Advantages and Disadvantages of Expert Determination

Advantages of expert determination include the following:

  1. Expert determination can be faster and more cost-effective compared to court litigation or arbitration.
  2. The process allows parties to select an expert with specialized knowledge in trademark law and industry practices.
  3. Expert determination can provide a focused and practical resolution for technical or industry-specific disputes.

Disadvantages of expert determination include:

  1. The decision of the expert may be difficult to enforce if it is not legally binding.
  2. The absence of procedural rules or evidentiary discovery can lead to a less rigorous evaluation of the parties' cases.
  3. There may be limited opportunities for the parties to challenge or appeal the expert's decision, making the outcome potentially less predictable.International Trademark Dispute Resolution Bodies

Trademark disputes can arise when the rights of a mark holder are allegedly infringed. Disputes typically involve issues such as unlawful use, counterfeiting, and unfair competition. As the global market continues to expand, the need for specialized institutions to address these disputes on an international level has become increasingly important. In this article, we will discuss three key international trademark dispute resolution bodies: the World Intellectual Property Organization (WIPO), the International Chamber of Commerce (ICC), and the International Trademark Association (INTA).

World Intellectual Property Organization (WIPO)

The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations, which was established in 1967. Its mission is to promote the protection of intellectual property rights worldwide, facilitate international cooperation, and provide a forum for the exchange of ideas and information. WIPO's mission is particularly significant in the trademark sector, given the growing importance of branding and the need for trademark owners to protect their intellectual property rights in multiple jurisdictions.

One of the primary functions of WIPO is to provide dispute resolution services, including mediation, arbitration, and expert determination. The WIPO Arbitration and Mediation Center is the institution's specialized dispute resolution body, which deals with various IP disputes, including trademark disputes. WIPO's mediation and arbitration services offer many advantages, such as expertise, cost-effectiveness, and neutrality of the proceedings. In addition, these services are generally quicker and more efficient than litigation, which helps parties resolve their disputes more effectively.

Since 1999, the WIPO Arbitration and Mediation Center has administered the Uniform Domain Name Dispute Resolution Policy (UDRP), a mandatory administrative proceeding applicable to all registered domain names under generic top-level domains. The UDRP has emerged as a successful mechanism for resolving domain name disputes involving trademark infringement, as well as unfair competition and bad-faith registration practices.

International Chamber of Commerce (ICC)

The International Chamber of Commerce (ICC) is a global business organization that aims to promote international trade and market access. Established in 1919, the ICC plays a crucial role in addressing various commercial challenges, including those related to intellectual property and trademark disputes.

The ICC International Court of Arbitration is the dispute resolution arm of the ICC, which oversees arbitration and alternative dispute resolution services. The Court has extensive experience in handling intellectual property disputes, including trademark disputes. The flexible rules and procedures of ICC arbitration allow parties to tailor the proceedings to their circumstances and preferences, ensuring a fair and efficient resolution of the dispute.

Furthermore, the ICC has developed the ICC Mediation Rules, which offer a flexible, voluntary, and confidential process for resolving trademark and other intellectual property disputes. Mediation allows parties to control the process and negotiate their own settlement, with the assistance of a neutral mediator, resulting in quicker and more cost-effective resolutions.

International Trademark Association (INTA)

The International Trademark Association (INTA) is a non-profit membership organization that supports the global protection of trademarks and related intellectual property rights. Founded in 1878, INTA represents trademark owners, legal professionals, policy-makers, and other stakeholders from around the world.

While INTA does not directly provide arbitration or mediation services, it plays a vital role in promoting the use of alternative dispute resolution (ADR) in trademark disputes. INTA's ADR initiatives include publishing guidelines, best practices, and training materials to help trademark owners and practitioners understand the advantages and options available through ADR. The organization also hosts forums and conferences that address issues related to the resolution of trademark disputes.

INTA works closely with other dispute resolution bodies, such as WIPO and the ICC, to facilitate cooperation and knowledge exchange. By advocating for the use of ADR in trademark disputes, INTA helps promote more efficient and cost-effective resolutions for parties involved in these conflicts.

In summary, the World Intellectual Property Organization (WIPO), the International Chamber of Commerce (ICC), and the International Trademark Association (INTA) are key international institutions that address trademark disputes and promote the use of alternative dispute resolution mechanisms. Through their cooperation and combined efforts, these bodies play a crucial role in protecting the rights of trademark owners and ensuring that disputes are resolved efficiently and effectively in an increasingly globalized marketplace.

Case Studies and Landmark Decisions in International Trademark Dispute Resolution

Apple Inc. v. Samsung Electronics Co.

The Apple Inc. v. Samsung Electronics Co. case is a prime example of a trademark dispute between two of the world's largest multinational corporations. The conflict began in 2011 when Apple Inc., a U.S.-based technology company, filed a lawsuit against Samsung Electronics, a South Korean company, claiming patent infringement and violation of their registered design rights.

Apple accused Samsung of copying the design of its iPhone and iPad devices and infringing its software patents. Some of the specific issues in the case included the design of icons, the "bounce-back" effect when scrolling, and the use of finger gestures on touch screens.

The case quickly escalated into a bitter legal battle spanning across multiple countries and involving multiple injunctions, trials, and appeals. However, despite a complex web of legal proceedings, certain outcomes and decisions in the dispute stand out as particularly significant.

One such landmark decision arrived in 2012, when a U.S. jury awarded Apple more than $1 billion in damages, finding Samsung guilty of willful patent infringement. This was later reduced to $548 million following appeals and retrials. In May 2018, the two companies agreed to a settlement, bringing an end to their seven-year legal battle.

The Apple v. Samsung case highlights the challenges of protecting innovative designs in the tech industry and the difficulties of navigating an increasingly intertwined global market. The case also provides valuable insight into the complexities of international trademark disputes and emphasizes the importance of effective dispute resolution strategies.

Christian Louboutin Sas v. Yves Saint Laurent America

The Christian Louboutin Sas v. Yves Saint Laurent America case was a high-profile trademark dispute centered on Louboutin's iconic red-soled shoes. The French footwear designer filed a lawsuit against YSL in the U.S. District Court for the Southern District of New York in 2011, claiming that the luxury brand was infringing its trademark for red-soled shoes.

Initially, the district court denied Louboutin's request for a preliminary injunction, as it believed that a single color could not be trademarked in the fashion industry. However, the case was appealed to the United States Court of Appeals for the Second Circuit, which ultimately found that Louboutin's red sole was a valid and distinct trademark.

In their decision, the appeals court found that Louboutin's trademark was valid, as it had "acquired secondary meaning" through its association with the designer's products. The case was remanded to the district court, where both parties eventually agreed to a settlement that allowed YSL to continue producing its red-soled shoes, provided they were monochrome designs.

This case demonstrates the importance of successfully arguing the distinctiveness of a trademark in the fashion industry. It also highlights the role that "secondary meaning" assumes in helping creators protect their designs and resolving trademark disputes.

Tiffany & Co. v. Costco

The Tiffany & Co. v. Costco case is another example of a high-profile trademark dispute. The famous jewelry company, Tiffany, filed a lawsuit against the wholesale giant, Costco, in the U.S. District Court for the Southern District of New York in 2013. Tiffany & Co. accused Costco of trademark infringement for selling rings with the label "Tiffany" without the former's authorization.

The court ruled in favor of Tiffany & Co., finding Costco guilty of trademark infringement and counterfeiting. In 2017, Tiffany was awarded $19.4 million in damages, which included $11.1 million in profits Costco had earned from the sale of the rings and interest, along with $8.25 million in punitive damages.

However, Costco appealed the ruling to the United States Court of Appeals for the Second Circuit, which overturned the damages award in 2020. The appeals court found that the lower court erred in granting summary judgment and that there were genuine issues of fact about whether Costco's consumers were confused by the use of the term "Tiffany."

This case illustrates the challenges of protecting a trademark in a diverse marketplace and the complexities of proving consumer confusion. It also demonstrates the need for proactive legal action by trademark holders in protecting their brand's reputation and value.

Best Practices and Recommendations for Avoiding International Trademark Disputes

In an increasingly globalized marketplace, protecting and enforcing trademark rights has become a complex and delicate issue. A strong brand identity is essential for any business looking to expand its presence on an international scale. To avoid costly and time-consuming trademark disputes, it is crucial to take preventive measures and employ strategic practices. This article will outline some best practices and recommendations for avoiding international trademark disputes, enabling businesses to focus on growth and expansion.

Comprehensive Trademark Search

One of the most significant steps in avoiding international trademark disputes is conducting a comprehensive trademark search before adopting or registering any mark. This search should extend beyond the domestic market and include relevant foreign markets where you plan to conduct, or might expand to, in the future.

Aside from searching local trademark databases, businesses should also explore resources such as the World Intellectual Property Organization (WIPO) database, the European Union Intellectual Property Office (EUIPO) database, and the databases of various other countries where they plan to operate. This comprehensive search will help ensure that the chosen mark is available for use and registration in all target jurisdictions.

Using a trademark search professional is highly recommended, as they have the knowledge and experience needed to navigate complex, multi-jurisdictional searches and mitigate potential risks. Their expertise can also assist in understanding and analyzing complex search reports, making it easier for businesses to make informed decisions.

Strategies for Avoiding Conflicts

Carefully selecting a trademark and developing strategies to avoid conflicts is crucial for businesses looking to keep trademark disputes at bay. By selecting a unique and distinctive trademark, businesses can minimize potential conflicts with existing trademarks and prevent confusion among consumers.

When choosing a mark, companies should avoid generic or overly descriptive terms, which are more likely to be identical or similar to other marks, increasing the chance of conflict. Conducting a linguistic analysis of the chosen trademark can also help identify possible unintended meanings or negative connotations that might cause difficulties in other jurisdictions.

Registering trademarks under the relevant international agreements and treaties, such as the Madrid Protocol or the European Union Trade Mark (EUTM) systems, can offer protection in multiple jurisdictions through a single application. This centralized registration process helps businesses avoid disputes by ensuring their trademarks do not infringe upon existing marks in the selected countries.

Monitoring and Enforcing Trademark Rights

Monitoring competitors and the marketplace is vital for preventing and identifying possible trademark infringements. By keeping an eye on newly registered trademarks and applications, businesses can detect and address potential disputes in a timely manner. Regular monitoring can also help identify instances of counterfeiting and unauthorized use of trademarks, enabling businesses to take appropriate action.

Businesses should consider working with local enforcement authorities, such as custom officials, to enforce trademark rights and prevent the importation of counterfeit goods. Developing relationships with these agencies can prove invaluable in preventing international trademark disputes and protecting brands from infringement.

Seeking Legal Advice

Finally, working with experienced legal counsel can be a substantial asset for businesses looking to avoid international trademark disputes. Such experts have a deep understanding of the legal frameworks and procedures surrounding trademarks and can provide comprehensive advice on registration, enforcement, and dispute resolution.

Skilled legal counsel can also guide businesses through the complexities of international trademark law, ensuring their marks are protected in all necessary jurisdictions. By seeking the guidance of legal experts, businesses can reduce the risks associated with potential disputes and focus on expanding their international presence. Overall, a proactive approach to avoiding trademark disputes, combined with suitable legal counsel, can ensure that businesses can grow and succeed in global markets.

1. What is the role of WIPO in international trademark dispute resolution?

The World Intellectual Property Organization (WIPO) assists in resolving international trademark disputes through their Arbitration and Mediation Center, which provides alternative dispute resolution (ADR) methods, such as mediation, arbitration, and expert determination, to help parties reach a settlement in a cost-effective and efficient manner.

2. How can the Madrid Protocol be utilized for trademark dispute resolution?

The Madrid Protocol enables trademark owners to protect their marks internationally in multiple countries by filing a single application. In case of disputes, the Protocol helps in resolving them by centralizing proceedings and offering a uniform approach to protecting trademark rights across its member countries, reducing litigation costs and time.

3. What are the main alternative dispute resolution methods used in international trademark disputes?

The primary alternative dispute resolution methods in international trademark disputes include mediation, arbitration, and expert determination. These methods facilitate parties to find a mutually acceptable solution, enabling a faster and more cost-effective resolution compared to traditional litigation.

4. How can a party initiate a dispute resolution process for an international trademark dispute?

To initiate a dispute resolution process, the party should approach a recognized dispute resolution organization, such as the WIPO Arbitration and Mediation Center, and submit a request for dispute resolution, including relevant documents and information. The chosen organization will then guide the party through the process, adhering to established rules and procedures.

5. Are the decisions of alternative dispute resolution methods enforceable in international trademark disputes?

Yes, the decisions resulting from alternative dispute resolution methods, such as arbitration, are generally enforceable in international trademark disputes. Arbitration awards are recognized and enforceable through the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which has been ratified by over 160 countries.

6. How can parties ensure confidentiality during international trademark dispute resolution?

Parties can ensure confidentiality during international trademark dispute resolution by incorporating confidentiality clauses in their agreements, explicitly stating the scope and obligations of confidentiality. Additionally, alternative dispute resolution methods, such as mediation and arbitration, often have built-in confidentiality measures and guidelines for the parties to follow.