India: Trademark Registry's Proposed Corrective Measures

Last Updated: 23 June 2011
Article by Sonam Lhamu Bhutia

Haldiram India Pvt. Ltd v Union of India and Anr, is a recent case where it was revealed that the Trademark Registry had misplaced over 44,000 files.

In the midst of an ongoing dispute, between Haldiram India (Petitioner) and the family of Kamla Devi Aggarwal/ Rameshwar Lal Aggarwal, the Petitioner requested certified copies of six documents from the Trademark Registry (TMR) who in turn informed the Petitioner that the said documents were not traceable. It was under the cloud of such doubts that the said documents had been deliberately misplaced or concealed by some officers of the TMR in collusion with the opposing party, that the petitioner filed the present application before the High Court of Delhi seeking a direction to the TMR to give them an inspection of the above files.

The Court directed the TMR to file an affidavit stating the efforts made to trace the missing files and status of each of the files where inspection was sought. The affidavit filed by the registry stated that the loss of the files could be attributed to the decentralization of the Registry. However, the Court was highly dissatisfied with this explanation and vide order dated 16th December, 2010, it directed that the matter ought to be examined at the level of the Secretary, Department of Industries, Government of India to indicate whether only the files in question were missing or documents relating to other cases were also missing; the corrective measure adopted by the Trademark Registry including but not limited to filing FIRs and the procedure to be followed for the purpose of reconstruction of missing original records.

Subsequently, a compliance affidavit was submitted which stated, among other things the before mentioned reason for the loss of files i.e. decentralization. A meeting to review the steps taken to comply with the Court's order of December 2010 concluded that the main reason for such irregularity was the absence of an effective digital record keeping system as well as the lack of due diligence by the TMR staff. The Controller General of Patents, Design and Trademarks (CGPDTM) was directed to follow certain procedures to counter any suspected mala fides.

The Registry's proposed corrective action was submitted as follows :

  1. In house verification of all files that have been digitized shall be undertaken and placed in the public domain within six months.
  2. Records of old registered files to be uploaded in the main server and linked with corresponding electronic record within three months.
  3. Complete records of all trademarks have been made public on the registry website so that any discrepancy can be brought to the registry's knowledge.
  4. After completion of the above, the registry would issue a public notice requesting right holders of unaccounted files to produce the necessary documents to enable reconstituted amendment/updation of records.
  5. A new IT policy has been provided for on the official site of the IPO and the Registrar proposes to completely digitize the complete IP records by 31st March 2012, positively.

Additionally, it was stated that a professional service provider, as a consultant to make a detailed assessment of the record management system was engaged; a final report would be submitted on 31/05/11 and further action was to be based on the said report. Further, a quarterly audit of the trademark records was to be directly monitored by the registrar. The record in charge, in every three months and the head of the Office in every six months would undertake a physical audit of the files in the record room. The record in charge would take necessary steps to build the missing files "based on the digital data available on the system, journals, publications and wherever possible, requisitioning it from the registered proprietor." It was also proposed that the trademark rules would be amended and for online filing of applications would be provided for, thus ensuring minimal chances of a data theft or damage.

The Court, dismissing the writ petition directed that the said measures were to be strictly implemented. Where a file is not traceable or is possibly misplaced, departmental action should be taken to fix the responsibility of negligence and where mala fide is prima facie established, an FIR should also be lodged. The question of whether these proposed corrective measures are implemented, will be answered only in the due passage of time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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