The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 was introduced in the house of the people (Lok Sabha) by the Government, on February 13, 2021. The aforesaid bill could not be taken up for consideration and passing in the house of the people failing which the President, given the Parliament is currently not in session, has now promulgated The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 vide the gazette notification dated 4th April, 2021. This Ordinance is expected to become a permanent Act on being approved by Parliament within six weeks of commencement of the next session of the Parliament.

This Ordinance aims to transfer the functions of key appellate bodies as established under various acts, including the Acts enacted to govern intellectual property in India. The significant amendments to the Acts dealing with the protection of Intellectual property are tabulated below.

Acts Appellate Board Proposed judicial bodies
The Trade Marks Act, 1999 Intellectual Property Appellate Board (IPAB) High Court
The Copyright Act, 1957 Intellectual Property Appellate Board (IPAB) Commercial Court or the Commercial Division of a High Court constituted under the  Commercial Courts Act, 2015; High Court
The Patents Act, 1970 Intellectual Property Appellate Board (IPAB) High Court
The Geographical Indications of Goods (Registration and Protection) Act, 1999 Intellectual Property Appellate Board (IPAB) High Court
Protection of Plant Varieties and Farmers’ Rights Act, 2001 Intellectual Property Appellate Board (IPAB) High Court

 

The sum and substance of the Ordinance is to dissolve the Intellectual Property Appellate Board (IPAB) established under the Trade Marks Act, 1999 in the year 2003. The Ordinance seeks to remove the appellate jurisdiction of the IPAB and transfer it to other judicial bodies as highlighted in the table above.

The Ordinance has amended the relevant portions of the aforesaid Acts primarily to either omit or substitute the terms “Appeal”, “Appellate”, “Tribunal”, “Board” and “Appellate Board”, “Appellate Authority” with “High court” or “commercial court” or “Registrar”, the effect of which is to abolish the IPAB.

The Ordinance is promulgated to further the objectives of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (“Act”) which provides for a 2 year timeline for adjudication of commercial disputes by the Commercial Courts and commercial division of High Court. For the uninitiated, the Act stipulated that all commercial disputes to lie in a Court not inferior to a District Court and shall be heard by the Commercial Court at the level of a District Judge exercising original civil jurisdiction. Further, a matter filed or pending on the original side of the High Court shall be heard by the commercial division irrespective of its pecuniary value. Furthermore, any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court.

Very importantly, the Courts have considered the intellectual property disputes under the Patents Act, 1970; Trade Marks Act, 1999; Designs Act, 2000; Copyright Act, 1957; and Geographical Indications of Goods (Registration and Protection) Act, 1999 as commercial disputes which are to be adjudicated by Commercial Courts and commercial division of the High Court irrespective of pecuniary jurisdiction. This would be ordinarily applicable to disputes relating to Intellectual property enforcement through Courts. Therefore, with the promulgation of the Ordinance, the Commercial Courts, commercial division along with non-commercial division of the High Court would now also exercise quasi-judicial jurisdiction which was earlier vested in the IPAB.

For e.g. the Ordinance amends the copyright act, 1957 to give the jurisdiction to the commercial Court or commercial division of a High Court in matters relating to commercial disputes arising out of copyright issues while giving the jurisdiction to the High Court for hearing parties aggrieved by the decision of the Registrar of the Copyrights. Similarly, under the Patents Act, 1970, all the appealable orders of the controller heard by the IPAB is now proposed to be heard by the High Court (commercial or non-commercial division). The choice of jurisdiction in the Ordinance seems to be based on the nature of disputes. If the dispute is arising out of the appeal from the decision of the Registrar or the Controller, the High Court is given the jurisdiction otherwise for matters which are of commercial nature, the Commercial Courts or commercial division of the High Court is vested with the jurisdiction.

With regards to the matters currently pending before the IPAB, the Ordinance is silent on whether or not the pending matters would be transferred to the Commercial Courts / High Courts. While a clarity is required on the issue, this is nonetheless a positive move for more streamlined, expeditious, time-bound and efficient resolution of disputes. The step to abolish the IPAB would seem more logical given the tribunal’s sporadic functioning over the past few years. We may expect that this Ordinance will be passed within six weeks of the commencement of the next session of the Parliament to become a permanent Act.

L.S.Davar & Co   Author:   Mr. Sonal Mishra, Jt. Principal Attorney    Email Id: MAILINFO@LSDAVAR.IN

 

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