Tuesday, May 02, 2006

Intellectual Property Adjudication - Trends in India [Case Study]

The Paul Manufacturing Co Case (2006 (32) PTC 285 (Del) came up before the Delhi High Court by way of a writ petition under Article 226 of the Indian constitution. The petitioner's prayer was to issue a writ of certiorari or a direction to quash the trade mark registration No 1280913 granted under the Trade Marks Act, 1999 by the Registrar of Trade Marks. The usual procedure is that the Trade Marks Registrar's decisions and orders are appealed to the Intellectual Property Appellate Board (the IPAB).
In this case too, the petitioner filed a rectification application at the IPAB. However, interestingly, the IPAB has been dysfunctional for several months because of the delay in appointing a technical member. The petitioner therefore contended that the IPAB was not functioning and that the High Court had extraordinary jurisdiction under Article 226 to issue a certiorari to quash the order granting the trade mark registration.

This raises a fundamental issue in relation to the jurisdiction of various tribunals and boards set up under special laws as against the extraordinary jurisdiction of the High Court under Articles 226 and 227 of the constitution. The IPAB is a specialized appellate authority constituted under the Trade Marks Act, 1999 to hear appeals from the orders of the Registrar of Trade Marks. As soon as the government notifies, the IPAB will also start hearing appeals from the decisions and orders of the Controller General of Patents and Designs. The specialized tribunals and boards have taken away the appellate jurisdiction of the high courts under a number of special laws.
This led to a situation of defining the jurisdiction of the tribunals and the high courts. The law laid down by the Supreme Court is that the high courts are only to invoke the writ jurisdiction on grounds of patent illegality or miscarriage of justice. Reiterating this point, a judge of the Delhi High Court took the unusual step of directing the joint secretary of the government to appear in Court to explain why the appointments to the IPAB have not been made in time. The government later told the Court that the appointment of the technical member at the IPAB had been made under an order dated January 30 2006.

The bare facts of this case do not attract serious attention. But the case deserves attention because of the unusual step the judge took when he directed the government to expedite the appointment to the IPAB. This shows the judiciary's resolve to develop an efficient IP system in India.
Rodney D. Ryder

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