The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy
InternKats: Rose Hughes, Ieva Giedrimaite, and Cecilia Sbrolli
SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Hayleigh Bosher (Book Review Editor), and Tian Lu (Asia Correspondent).

Thursday, 24 September 2009

India: will IP litigation be both 'punctual' and 'faithful'?

Thank you, Amit Jamsandekar, for sending the Kats this fascinating (and blessedly short) ruling of the Indian Supreme Court on 16 September in Bajaj Auto Limited v TVS Motors Limited, MANU/SC/ 1632/2009 which, says Amit, is "expected to change the entire scenario of intellectual property litigation in India".

Right: Indian IP litigation is quite tigerish at interim level, but rarely gets beyond it ...

Explains Amit:
"Justice Katju [as a Jewish Kat, Jeremy loves this name!] noted the judgment of the Supreme Court dated 7 September 2009 (which is not reported and went unnoticed) in Special Leave Petition (C) No. 21594 of 2009 in Shree Vardhman Rice & Gen Mills v Amar Singh Chawalwala in which the Court said:

“...Without going into the merits of the controversy, we are of the opinion that the matters relating to trademarks, copyrights and patents should be finally decided very expeditiously by the Trial Court instead of merely granting or refusing to grant injunction. Experience shows that in the matters of trademarks, copyrights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper.

Proviso (a) to Order XVII Rule 1(2) C.P.C. states that when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for exceptional reasons to be recorded by it the adjournment of the hearing beyond the following day is necessary. The Court should also observe Clauses (b) to (e) of the said proviso.

In our opinion, in matters relating to trademarks, copyright and patents the proviso to Order XVII Rule 1(2) C.P.C. should be strictly complied with by all the Courts, and the hearing of the suit in such matters should proceed on day to day basis and the final judgment should be given normally within four months from the date of the filing of the suit."

The Court added that the fact that the litigation is mainly fought in India in respect of a temporary injunction is a very unsatisfactory state of affairs. He held that the order passed in Shree Vardhman Rice & Gen Mills, which is quoted in the present judgment, was passed to serve the ends of justice. Significantly, the Supreme Court has directed all the Court and Tribunals in India to follow the order passed in Shree Vardhman Rice & Gen Mills "punctually" and "faithfully".

The reaction of the Supreme Court was much awaited considering the practice followed in India for IP litigation. In practice, IP litigation in India ends at the interim stage. It would be interesting to learn how the Courts and Tribunals and the IP Professionals react to the Judgment of the Supreme Court. By virtue of the provision of the Constitution of India, the judgment of the Supreme Court is law of the land.

Today, civil courts are severely over-burdened. Apart from IP, they also adjudicate all other disputes of civil nature. As things stand today, the civil courts find it difficult to dispose of interim applications during the pendency of the suit within the timeframe provided as per the Code of Civil Procedure, 1908. Additionally, there are no specialized civil courts, which adjudicate singularly on IP matters. The Intellectual Property Appellate Board (IPAB), established under the Trade Marks Act 1999, which has jurisdiction under the Patents Act, can only try matters in respect of opposition to and rectification of trade marks/ patents/ designs. The IPAB also has jurisdiction to entertain, try and dispose of appeals from the orders passed by the Controller of Patents and the Registrar of Trade Marks. However, the IPAB has no jurisdiction to try infringement suits; the civil courts have the exclusive jurisdiction in respect of the same.

In this scenario, given their constrained bandwidth, it would be interesting to see how civil courts follow the Supreme Court’s directive “punctually” and “faithfully”.
This weblog has a large, enthusiastic and vocal Indian readership. Accordingly the IPKat expects to receive plenty of comments from the subcontinent.

1 comment:

Anonymous said...

It is highly commendable judgement academically. The pendency is mainly due to exploitation of the system by the unscrupulous, who know that there is no merit in the case and still prolong the matter by one way or the other, so that the bonafide gets exhausted.Penal compensations appear to be atleast one remedy for dealing this situation Criminal remedies are tedious and rarely meet the ends of Justice. It is my personal opinion.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':