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In The High Court of Judicature at Madras Special Original Jurisdiction W.P. NO. - OF 2011
In The High Court of Judicature at Madras Special Original Jurisdiction W.P. NO. - OF 2011
In The High Court of Judicature at Madras Special Original Jurisdiction W.P. NO. - OF 2011
Shamnad Basheer,
Ministry of HRD Chair Professor in
Intellectual Property Rights,
West Bengal National University of Juridical Sciences,
NUJS Bhavan, 12 LB BLOCK,
Salt Lake City, Sector III,
Kolkata - 700098, India.
Petitioner
Versus
1. Union of India,
Represented by its Secretary,
Department of Industrial Policy & Promotion,
Ministry of Industry & Commerce,
Government of India,
Udyog Bhavan,
New Delhi 110011.
2. Intellectual Property Appellate Board,
Represented by its Registrar,
Annex-I, Guna Complex, II Floor,
443 Anna Salai, Teynampet,
Chennai 600 018.
.... Respondents
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Chair
instituted
by
the
Ministry
of
Human
the
National
Law
School
of
India
University,
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research
and
was
deeply
interested
in
infirmities
which
adversely
impact
the
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citizens
by
seeking
fair,
just
and
most
Gazette
Notification
No.
S.O.1049(E),
only
in
original
revocation
petitions
against
registered
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main
administrative
authority
to
whom
trademark
registration
after
deciding
any
possible
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course
of
pending
trademark
infringement
contends
that
trademark
and
plaintiff
the
his
is
in
also
turn
registered
counters
such
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similar
circumstances
as
before
the
1999
Act,
Remedy
1958-2003
2003 2010
No.
under
(Act of
(Present
Trade
1958)
Act)
1.
Marks Act
Appeals
against
Orders
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To
the Courts.
of
High To
only
IPAB.
the
the Registrar
of
2.
Trade
Marks.
Rectification
To
petitions
Courts.
High To
only
the
IPAB.
against
trademarks.
There is no provision for a statutory appeal against the
orders of the IPAB passed in its jurisdiction stated
above, making it all the more necessary that the
adjudication by the IPAB has to be performed by
members with prior judicial experience.
whom
patent
applications
are
made.
Since
its
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1970
AS
(AMENDMENT)
AMENDED
ACT,
BY
2002
THE
PATENT
&
PATENT
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as
patentability,
public
interest,
potential
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the
opposition
Controller
of
mechanism
Patents
under
via
the
Section
post-grant
25(2)
of
the
18.
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Remedy under
1970-2007
2007 2010
No.
1.
Patents Act
(Act of 1970)
Appeals against To
the
Orders
(Amended
Patent Act)
High To the IPAB
of Courts.
only.
the Controller of
2.
Patents
Original
To
revocation
Court
any
in
High To
the
IPAB
the only.
discussing
the
grounds
for
constitutional
The
statutory
qualification
criteria
for
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Member
and
Technical
Member.
The
23.
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or
Any person who 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 atleast 5 years
26.
Court; or
Has, for at least two years, held the office of a ViceChairperson
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in
the
name
of
the
President,
can
be
Central
Government
to
prescribe
the
salary,
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33.
General
observations
as
regards
the
(ii)
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Vice-Chairperson,
then
that
Vice-
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(i)
Trademark
Bench
Chairperson),
Mr.
Ms.
Syed
S.
Usha
Obaidur
(Vice-
Rahaman
Mr.
Z.S.Negi
was
Secretary
to
the
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herewith,
illustrates
several
false
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consisted
of
the
Secretary,
DIPP;
General
observations
as
regards
the
IPAB
function
with
the
same
degree
of
Annual
Ministries
and
Reports
of
Departments
Central
cover
Government
only
those
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Report
of
the
DIPP
that
the
Central
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possessed
and
the
adjudicatory
results
Total patent
Total patent
cases
cases
filed/received
disposed
65
16
Delhi
45
Mumb
34
11
Chenn
ai
ai
Kolkat
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a
Total
155
21
Total
Total
trademark
trademark
cases
cases
filed/receive
disposed
d
Chennai
552
331
Delhi
923
353
Mumbai
310
58
Ahmedab
222
112
Kolkata
238
47
Total
2245
901
ad
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Month
January, 2010
February, 2010
March, 2010
April, 2010
May, 2010
June, 2010
July, 2010
August, 2010
September, 2010
October, 2010
November, 2010
December, 2010
Total
No of Sittings
2
11
11
10
5
9
10
7
8
13
15
2
103
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Date
24.11.20
Circuit Bench
Ahmedabad
Venue of Hearing
Gujarat State Legal
2.
10
8.11.201
New Delhi
Services Authority
Conference
Hall,
3.
0
21.6.201
Kolkata
Patent Office
Conference
0
35.
Hall,
Patent Office
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While
such
cross-examinations
are
Court,
is
the
fact
that
the
statutory
norms
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37.
Since
the
retirement
age
of
the
Vice-
both
Dr.
Raghbir
Singh
and
his
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law
disputes
in
the
U.K.
The
specialised
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to
tribunalize
administration
of
justice.
consumer
disputes
and debt
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[2010]
156
Comp.Cas.
392.
The
persons
who
possess
adequate
judicial
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with
the
recognized
principles
of
before
assuming
their
tenure
as
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experience.
The
Supreme
Court
had
Trade
Marks
Act,
1999
which
allows
for
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Secretary
level
officers
of
the
Central
therefore
ultra
vires
Article
14
of
the
Constitution of India.
E.
to
provide
for
longer
terms
of
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What
appointed
to
the
IPAB
have
been
experience
in adjudication
of
intellectual
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such
as
the
Copyright
Board,
the
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Election
determined
by
Commissioner
Parliament.
whose
For
these
salary
is
reasons,
DIPP
functioning
under
the
Ministry
of
concerned
RTI
authority
for
all
matters
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the Government
of
India
(Allocation of
IPAB
circuit
infrastructure
as
benches
and
disclosed
in
their
the
woeful
annexed
Honourable
Court
may
therefore
pass
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J.
K.
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in
determining
the
tests
for
established
position
that
the
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L.
account
expertise
in
when
creating
adjudication
bodies
of
certain
that have
kinds
of
M.
level
of
independence
and
functional
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N.
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and
violative
of
the
basic
structure
of
the
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my
presence.