Wednesday, June 27, 2012

Nature of IPAB’s Jurisdiction

The following is an excerpt from a decision of the IPAB dated July 26, 2011:

“25.  The IPAB has its permanent sitting at Chennai and holds its sittings in Circuit at Delhi, Mumbai, Kolkata and Ahmedabad. The power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals when their respective jurisdiction has been upheld. The orders of the IPAB are subject to the High Court’s power of judicial review. The High Court which exercises this judicial superintendence is that High court within whose territorial jurisdiction the IPAB sits while issuing its order. Therefore, if an order is passed by the IPAB while sitting in Delhi, the aggrieved party applies to the Hon’ble Delhi High Court to correct the order and so on.  But as regards the question which High Court’s decision binds us, the answer must be that we are bound by the judgements of all the High Courts. Unlike Tribunals which have separate Benches for each zone and therefore bound by the jurisdictional High Court, Intellectual Property Appellate Board exercises its jurisdiction all over India but only sits in Circuit. Therefore, to follow the jurisdictional High Court rule would lead to an anomaly. For example, ‘A’ filing a suit against ‘B’ for infringement of its trade mark will, in respect of the same trade mark, be forced to get leave, of the court before whom the suit for infringement is filed, to file rectification proceedings if the suit is filed in the Hon’ble Delhi Court or anywhere within the jurisdiction of the Hon’ble Delhi Court and it need not seek leave of the court if the suit is filed in the Hon’ble Madras High Court or anywhere within the jurisdiction of the Hon’ble Madras High Court. This is an anomalous situation and will not be logical.

26.              Then again the same persons who comprise the Bench will speak in “different voices” depending on whether they are sitting in Delhi or in Chennai. This leads to confusion and uncertainty, and if anything law has to be certain.

The decision and the above-excerpt were brought to my attention by a well-wisher of the blog. The first portion of the excerpt (in bold and italics) captures well the nature of jurisdiction exercised by the IPAB, which is a mix of “subject-matter” and territory-based jurisdictions. Being a body which has been expressly and exclusively constituted as an appellate body over the decisions of the Patent and Trademark registries, the scope of the subject-matter which triggers the jurisdiction of the IPAB is crystal clear.

What is also clear is that although the IPAB has its permanent seat in Chennai, its various circuit benches sit in appeal over the decisions of the corresponding patent and trademark registries. In other words, a decision of the Delhi branch of the Indian Patent Office may be scrutinized in appeal only by the Delhi Bench of the IPAB. To this extent, the excerpt makes sense.

However, the subsequent underscored portion appears to be an argument of convenience which directly contravenes the pronouncement of the Supreme Court in E.I.Commercial Co. v. Collector of Customs (A. 1962 S.C.1895). In this case, the Supreme Court had held that the law declared by a High Court would be binding on all inferior courts as well as tribunals within the State.

The law on this point as laid down by the Supreme Court does not change merely because the same set of people (members of the IPAB) are subject to different High Courts depending on where the sitting is held. This is because the IPAB, when holding a sitting within the jurisdiction of a particular High Court, has no option but to follow the law as laid down by that High Court.

Further, the members of the IPAB are merely human agents who speak on behalf of the Tribunal, they are not the Tribunal themselves. The Tribunal is a body corporate with a permanent seal, which is bound by the doctrine of stare decisis which binds all sub-ordinate courts and tribunals to the High Court. Therefore, when members of the IPAB speak, they do not voice their personal views, they voice the views of a particular circuit bench of the IPAB which is bound by the law as spelt out by the High Court of that State.

If this were not the case, the situation would be that all lower Courts would follow the law laid down by the High Court, except the IPAB circuit bench. This is not just an anomaly, but is actually contempt and unconstitutional.

Since High Courts themselves are at liberty to differ with each other on the interpretation of a provision which is equally applicable to all States (for instance in central legislations), the premise underlying the IPAB’s reasoning lacks legal sanction and factual basis. Merely because IP laws are uniformly applicable throughout the country, it does not take away the prerogative of different High Courts to take differing, even contradictory views on the law. The tribunals/benches of tribunals which fall within the territory of High Courts, have no option but to apply the law as interpreted by their respective High Courts.


  1. So sir IPAB circuit benches decision isn't binding upon any other bench or the main bench in chennai.
    when any particular lower court while deciding any issue like to say infringement wouldn't follow the similar precedents set by the IPAB..this would waste a lot of the courts time...thank you for bringing this point forward..

  2. Dear Ayush,
    Each bench, in my opinion, is bound by its own precedents under stare decisis and by that of the High Court within whose jurisdiction the IPAB falls under Article 226. As regards other lower Courts, since IPAB is the focal body handling trademark validity, it is but obvious that its judgments would have more than just persuasive value. That said, if the High Court does have an opportunity to set the law on validity in a writ under Article 226, that would be the law governing the corresponding IPAB bench and all lower Courts. I will be shortly writing a detailed post on the issue.

    Best Regards,