India: Is Intellectual Property Appellate Board (IPAB) Unconstitutional?

Last Updated: 9 April 2015
Article by Aayush Sharma

Most Read Contributor in India, September 2016

Intellectual Property Appellate Board (IPAB) is one of the most prominent IP tribunal in the country. The IPAB formed under the Department of Industrial policy and promotion, Government of India (DIPP) is all set to hear appeals against the decisions of the Controller General of Patents, Registrar under the Trade Marks Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Act, 1999. IPAB has its headquarters at Chennai and shall have sittings at Chennai, Mumbai, Delhi, Kolkata and Ahmadabad. It is the only tribunal in India which has a global impact1. Recently the Madras High Court raised a question on the constitution of the IPAB where the Madras High Court headed by the Justice Sanjay Kishen Kaul stated that section 85 of the Trademarks Act, 1999 provided provision for the establishment of the IPAB as "unconstitutional". This judgement will bring down the constitution forming of the IPAB and required for improvement in forming the strong constitution for the only IP tribunal in the country.

Prayer: Writ Petition filed under Article 226 of the Constitution of India seeking for the relief of issuance of Writ of Declaration declaring Chapter XI of the Trade Marks Act, 1999, and Chapter XIX of the Patents Act, 1970 as ultra vires Articles 14, 19(1)(g), 21, 50, 245 of the Constitution of India and violative of the basic structure of the Constitution and hence void ab initio, in so far as it establishes the Intellectual Property Appellate Board (IPAB) and vests important judicial functions on this Board.2

On 10th March, 2015 the Madras high court on the petition filed by the Prof. Shamnad Basheer gave their judgement where the court challenge the constitution of the IPAB. The Court held that the section providing for Indian government officers (ILS officers) to be elected as judicial members to the tribunal was invalid in law3. The Court also ruled that any committee constituted to select members to the tribunal should necessarily be predominated by judges or those with requisite judicial qualifications.

The Court also held that in the absence of requisite judicial qualifications, a technical member cannot become a Vice Chairman or a Chairman. Further, the court declared the provisions of the Trademarks Act important to the IPAB's composition unconstitutional. The petitioner believed that the entire process of the selection of the IPAB is flawed and baseless. Going the base of this judgement under the Trademarks Act, 1999 the section 2(k) stated as :-

Section 2(k) of the Trade Marks Act, 1999 defines a ''judicial member'', which is as follows:-

''Judicial Member" means a Member of the Appellate Board appointed as such under this Act, and includes the Chairman and the Vice-Chairman'' This Section seeks to provide an expanded meaning to the word ''Judicial Member''. We would like to express our understanding of this provision when we discuss the impugned provisions.

Provisions of Section 85 of the Trade Marks Act, 1999:-

Chapter XI of the Trade Marks Act, 1999 deals with the Appellate Board qua the establishment, composition, qualifications for appointment, term of office, functioning, salaries, etc.,

" Section 85 deals with the qualifications for appointment as Chairman, Vice-Chairman or other Members. Now, we are dealing with the constitutionality of this provision. For better appreciation, the said provision is reproduced hereunder:

''(1) A person shall not be qualified for appointment as the Chairman unless he—

(a)is, or has been, a Judge of a High Court; or

(b) has, for at least two years, held the office of a Vice-Chairman.

(2) A person shall not be qualified for appointment as the Vice-Chairman, unless he—

(a) has, for at least two years, held the office of a Judicial Member or a Technical Member; or

(b) has been a member of the Indian Legal Service and has held a post in Grade I of that Service or any higher post for at least five years.

(3) A person shall not be qualified for appointment as a Judicial Member, unless he—

(a) has been a member of the Indian Legal Service and has held the post in Grade I of that Service for at least three years; or

(b) has, for at least ten years, held a civil judicial office.

(4) A person shall not be qualified for appointment as a Technical Member, unless he—

(a) has, for at least ten years, exercised functions of a tribunal under this Act or under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or both, and has held a post not lower than the post of a Joint Registrar for at least five years; or

(b) has, for at least ten years, been an advocate of a proven specialised experience in trade mark law.

(5) Subject to the provisions of sub-section (6), the Chairman, Vice-Chairman and every other Member shall be appointed by the President of India.

(6) No appointment of a person as the Chairman shall be made except after consultation with the Chief Justice of India.''

Technical Member:-

The Supreme Court in Madras Bar Association Vs. Union of India ((2014) 10 SCC 1), after taking note of the earlier decisions was pleased to hold that the role of a technical member is rather limited. Though the Legislature has got a power to appoint technical member, it has to decide its necessity first. Considering the nature of the Tribunal and the steps that are being dealt with, we do not find any error in the provisions, which require appointment of a technical member.

The qualification for the post of Senior Joint Registrar of Trade Marks and Geographical Indications is prescribed hereunder:

''(i) Degree in Law from a recognised University;

(ii) Twelve years practice at a Bar or Twelve years experience in a State Judicial Service or in the Legal Department of a State Government or of the Central Government or in the processing of applications for registration filed under the Trade Marks Act or Geographical Indications Act or in teaching law in a recognised University or Institute. Or

Masters Degree in Law of a recognised University with ten years' experience in teaching law or in conducting research in law in a recognised University or Research Institution.''

Understanding the beneath of the Act, in the present case, a technical member takes part on equal terms along with a judicial member in the decision making process. The qualification is also prescribed as 12 years of practice at the bar or 12 years experience in a State Judicial Service with a Degree in Law. With the above said qualification, along with other qualifications, there cannot be any difficulty in appointing such a person as a technical member. However, the problem would possibly arise when a person sought to be appointed as a technical member merely because he works in the Legal Department of a State Government or Central Government or involved in the process of applications for registration filed under the Trade Marks Act or Geographical Indications Act or in teaching law in a recognised University or Institute. Similarly, a Masters Degree in Law of a recognised University with ten years' experience in teaching law that may be a qualification for appointment of a Registrar cannot be termed as a qualification requisite for appointment of a technical member. The Scheme of the Act also provides for the appointment of a technical member as a Vice Chairman and then as Chairman. Therefore such persons cannot be made eligible. The court in their views by the judgment rendered in R.K.Jain Vs. Union of India, ((1993) 4 SCC 119), wherein, the Honourable Supreme Court in paragraph 67 has held as follows:

''67. The Tribunals set up under Arts. 323A and 323B of the Constitution or under an Act of legislature are creatures of the Statute and in no case claim the status as Judges of the High Court or parity or as substitutes.

However, the personnel appointed to hold those offices under the State are called upon to discharge judicial or quasi-judicial powers. So they must have judicial approach and also knowledge and expertise in that particular branch of constitutional, administrative and tax laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained judges in the High Court and Supreme Court would arise for discussion and decision.

Such kind of decision is first in case of IPAB and thus the entire selection procedure of the IPAB is invalidated. In reviewing this judgement, whether the IPAB will stop performing as a tribunal or only unconstitutional part will be blocked, will remains a big question for the IPAB. Still nothing will be clear from the IPAB side. This judgement will surely rise up the constitutional validity of the India's only IP tribunal.





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