Intellectual Property

Appellate board
Dr. Ashu Dhiman
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. 
PURPOSE
 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
CHAIRMAN
 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. 
VICE-CHAIRMAN
 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.
OTHER MEMBERS
 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.
CONCLUSION 
 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.