According to the report by SpicyIP, the high court ruled the provision allowing members of the Indian Legal Services to become judicial members of IPAB was invalid.   (According to the report by SpicyIP, the high court ruled the provision allowing members of the Indian Legal Services to become judicial members of IPAB was invalid.)
According to the report by SpicyIP, the high court ruled the provision allowing members of the Indian Legal Services to become judicial members of IPAB was invalid. (According to the report by SpicyIP, the high court ruled the provision allowing members of the Indian Legal Services to become judicial members of IPAB was invalid.)

Key provisions in Trademarks Act are unconstitutional: HC

A two-judge bench declared the provisions of the Trademarks Act important to the IPAB’s composition unconstitutional, say reports

New Delhi: The Madras high court on Tuesday struck down several key provisions of the Trademarks Act, 1999, which established the Intellectual Property Appellate Board (IPAB), intellectual property expert and petitioner Shamnad Basheer confirmed.

Mint has not reviewed a copy of the judgement of the high court as it was not available in the public domain at the time of going to print.

According to intellectual property blog SpicyIP (http://mintne.ws/1AdY1GS) founded by Basheer, a two-judge bench headed by chief justice Sanjay Kishan Kaul declared the provisions of the Trademarks Act important to the IPAB’s composition unconstitutional.

Senior lawyer Arvind Datar, who represented Basheer, said the entire selection process to the appellate board was flawed.

Giving an example, he said a technical member of IPAB could become vice-chairman after a certain number of years of service, following which he would be deemed to be a judicial member of the appellate board.

He added the vice-chairman was also qualified to become chairman of IPAB, which added to the many flaws in the Act.

According to the report by SpicyIP, the high court ruled the provision allowing members of the Indian Legal Services to become judicial members of IPAB was invalid.

Further, the tribunal was to be have mainly judges or those who were qualified to be judges, the court said, according to SpicyIP.

Basheer’s writ petition, which was filed in May 2011, a copy of which Mint has reviewed, had challenged various aspects of IPAB, including the qualification criteria for IPAB members and the appointment procedure. The petition claimed the corresponding provisions of the Trademarks Act failed to give the safeguards required by a Supreme Court decision of 11 May 2010.

“Our stand has been vindicated. And I really hope the government begins to take tribunals more seriously and secure them on firmer legal moorings," Basheer said.

IP lawyer Prathiba Singh said IPAB itself was not unconstitutional. “It appears some key provisions have been struck down. Because of the strategic importance of intellectual property, this order will ensure more competent people being appointed in IPAB," she said.

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