Focus Keyword- Appellate Board
Additional Keywords- Section 83, the establishment of the appellate board, Section 84, the composition of the appellate board
ESTABLISHMENT OF THE APPELLATE BOARD
According to section 83 of the Indian Trademarks Act, the Central Government shall, by notification in the Official Gazette, establish an Appellate Board to be known as the Intellectual Property Appellate Board to exercise the jurisdiction, powers, and authority conferred on it by or under this Act. The Intellectual property appellate board came into existence on 15th September 2003. Its headquarters is in Chennai and has sittings in Chennai, Mumbai, Kolkata, and Ahmedabad.
PURPOSE OF THE APPELLATE BOARD
The Intellectual Property Appellate Board was constituted to hear appeals from the orders passed by the registrar under the Trademarks Act, the Geographical Indications of Goods (Registration and Protection) Act, and from the decisions, orders or directions made by the Patent Controller under the Patents Act. The power to appeal against the order passed by the patent controller under the Patents Act began from the year 2007. The appeal against the patent controller before the high court was transferred to this appellate board after it’s the constitution. IPAB shall continue such matter from the stage it was pending before the high court.
Some matters cannot be appealed before this board. It includes the orders passed by the Central Government of India in relation to the invention for the defence purpose and the revocation of the patent in the light of public interest or orders related to atomic energy. The extension of time granted by the Controller under the Patent Act cannot be appealed against.
COMPOSITION OF THE APPELLATE BOARD
The Appellate Board constituted under the Trademarks Act consists of three types of members: the chairman, the vice-chairman, and other members who are nothing but the technical and judicial members. The other members are appointed by the Central government as it deems fit. Its powers and authority can be exercised by the benches. From time to time, a notification is sent out by the board which directs the division of the subject matters between the benches. It consists of one technical and judicial member. The Central Government can appoint other officers to assist the board in discharging its functions as it deems fit.
A person cannot be appointed as the chairman unless he was or is the High Court judge or was a Vice-Chairman for a period of two years. He is appointed for a period of five years or until he becomes 65 years old. He gets to decide whether a matter comes within the purview of a bench or not. He has the option to act as the chairman of any other bench apart from the bench to which he is appointed. He can transfer one member from one bench to another and authorize a member to act as a member of another bench along with the bench to which he is appointed. When there is a difference of opinion among the members regarding a matter, they refer it to the chairman along with the points on which they differ. The chairman deals with this situation in two ways. He either decides on the matter himself or he directs it to other members. When it is directed to the other members, the decision with respect to the subject matter is by the majority. This is inclusive of the members to which the matter is directed and the member who have initially heard the case. The other officers who are appointed by the Central government work under the superintendence of the chairman.
When a person makes an application for the transfer of a case from one bench to another, it is the duty of the chairman to send a notice to the other party and hear people at his discretion. The chairman also has the power to transfer a case from one bench to another on his own.
When a chairman dies or resigns, temporarily the vice-chairman acts as the chairman until a new chairman is appointed according to this act. The senior-most member acts as the chairman when the vice-chairman is absent until a new chairman is appointed. When a chairman is absent or ill, the vice-chairman of the senior-most member when the vice-chairman is absent acts as the chairman until he resumes to duty.
A person is not appointed as the vice-chairman unless he has been a technical or a judicial member for a period of two years or was a member of the Indian legal service and held a post not lesser than Grade I for a period of five years. He holds the office for a period of 5 years or until he attains the again of 65 years. He acts as a substitute in case of the death/ resignation or absence of the chairman.
This includes technical and judicial members. A person cannot be appointed as a judicial member unless he has been a member of the Indian legal service and held a post of Grade I for a period of three years or has held a post in the Civil judicial office for a period of 10 years. A person cannot be appointed as a technical member unless he has been an advocate in any of the specialized trademark law for a period of ten years or has discharged the functions of the tribunal under this act or Trade and Merchandised Act or both for a period of ten years along with holding a post not less than a joint registrar for a period of five years.
The important point to note is that all the members i.e the chairman, vice-chairman, the judicial, and the technical members are appointed by the president only after the consultation of the chief justice of India. The salaries, allowances, gratuity, pension, the terms and conditions of the members are prescribed. When a person in the government service is appointed as the chairman or vice-chairman or technical or judicial member, he shall be deemed to have retired on such an appointment.
RESIGNATION OR REMOVAL OF THE MEMBERS
The members of the appellate board/bench can resign by giving notice to the President and he shall be deemed to have vacated the office after the expiry of three months from the sending of the notice. The member can vacate the office before the expiry of the said period if the President allows it or if a new person is appointed to fill the post. None of them can be removed before the expiry of their term except by an order of the President on the basis of proved misbehaviour or incapacity by a judge of the Supreme Court. This must be done only after informing the member of the charges against him and providing him with a reasonable opportunity of being heard.
FUNCTIONS OF THE APPELLATE BOARD
When a person is aggrieved by the order of the registrar, he shall file an appeal within three months of the passing of the order before the board. The board can hear cases after the expiry of the said period if there is sufficient and reasonable cause for not being able to file for an appeal before the specified time. The appeal must be filed in the prescribed form and manner along with a copy of the order against which the appeal is filed. An application can be filed for the rectification of the register under sec 57 of the Act and when the board passes an order regarding this, the certified copy of the order is communicated to the registrar. The registrar gives effect to the order by amending or rectifying the contents in the register.
POWERS OF THE APPELLATE BOARD
The board is not bound by the rules of the civil procedure code. It is bound by the principles of natural justice and has the power to regulate its own procedure like deciding the time and place of the meeting. It shall have the same power like that of a court trying a suit under the civil procedure code like receiving evidence, examining the witness, requisitioning any public record etc. The proceeding before this board is deemed to be a judicial proceeding and the board is considered to a civil court. After the constitution of this board, no other court has the jurisdiction to try cases that come under the purview of this board. No interim order can be passed by the court unless the copy of the order against which appeal is initiated and the documents in support of the claim for the interim order is provided.
The registrar has the right to appear in a legal proceeding where the issue is regarding the amendment or rectification of the register. The registrar also has the right to appear in a proceeding in relation to the rejection or amendment of the application of the registration of the trademark. The registrar will appear also if he is directed by the Board. The registrar can also provide a written statement with particulars in support of his contention which will be regarded as evidence. A trademark can be removed from the register on the application made to the registrar or the appellate board.
After the constitution of the Intellectual Property Appellate Board, they have exclusive jurisdiction over the above-discussed matter. Every case of the above-mentioned nature stand transferred pending before any court is transferred to this appellate board after its constitution. It decides cases only after giving a reasonable opportunity to both the parties as it follows the principles of natural justice and the certified order copy is forwarded to both the parties including the registrar. On ceasing to hold office, the Chairman, Vice-Chairman or other Members shall not appear before the Appellate Board or the Registrar.
Kavitha hails from Sastra University, Thanjavur and she spends most of her time in dancing and playing chess. Her Interest area lies in Constitutional and International Law. For any clarifications, feedback, and advice, you can reach her at firstname.lastname@example.org