The Intellectual Property Appellate Board( IPAB) was established by the Government of India on 15th September 2003 to hear prayers from the opinions of the Registrar of TradeMarks and GI and a fresh forum for deciding cancellation/ rectification operations.
The ideal of its establishment was speedy disposal of prayers and rectification operations which were being decided by the Registry.
The Central Government by way of a constitution viz. ‘ The Bars Reforms( Vindication and Conditions of Service) constitution, 2021 ’, published in the review of India dated April 4, 2021( for short ‘ the constitution ’) has abolished the Intellectual Property Appellate Board( IPAB).
The following are the goods of the Ordinance
- The prayers from the Registrar’s orders will have to be filed before the separate High Courts where the Registrar’s office is positioned i.e. at Mumbai, Delhi, Ahmedabad, Kolkata or Chennai.
- Now there will be no uniformity of procedure for filing the Appeal, rectification/ cancellation operations and posterior suppliances as the different High Courts have different sets of rules and practice.
- numerous High Court rules dictate that the appearance of a counsel registered in another state should only be filed along with an original counsel( Jamshed Ansari vs High Court Of Judicature, SC). Thus, engaging a original counsel will be a condition precedent for filing any appeal and/ or rectification operation before the High Courts which have similar rules.
- Rectification/ cancellation operations can be filed before the Registrar of Trade Marks or before the High Courts. Rectification operations under Section 125 of the Trade Marks Act, 1999( for short ‘ the Act ’) can be filed before the High Court.
- The description of ‘ Tribunal ’ under Section 2( 1)( ze) should have been amended but the clause is incorrectly neglected. Without defining a bench, the Registrar of TradeMarks and the High Court is pertained to as ‘ bench ’ in posterior amended sections.
- The speaker,Vice-Chairperson and the specialized member of the IPAB were a perfect balance of judicial prudence and specialized moxie in the trademark law which redounded in the quality of opinions by the IPAB. Still, similar specialized moxie may not be available with the High Court while deciding trademark prayers and rectification operations.
- As per the judgment passed by the Hon ’ ble Supreme Court in Patel Field Marshal Agencies vsP.M. DieselsLtd. A cancellation solicitation can be entertained by the bench i.e. by the Registrar of TradeMarks or the High Court only after the court trying a suit of violation frames an issue of invalidity of the enrollment under Section 124 of the Act. The bench’s governance is contingent on a finding of civil court as respects to the prima facie tenability of the plea of invalidity.
- The fresh forum of filing a writ solicitation before a High Court against the order of the IPAB is also excluded.
- All the prayers and operations pending before the IPAB before the date of the constitution shall stand transferred before the separate High Courts having governance. The High Court may do to deal with similar cases from the stage at which it stood before similar transfer, or from any earlier stage, or de novo, as the High Court may suppose fit.
We hope the colorful High Courts will decide the trademark prayers and rectification operations as expeditiously as possible and the Government should also fix a timeline to decide similar matters by the High Court so that there will be equality in disposing the matters in a timely manner by all High Courts having governance to entertain prayers & rectification operations.
