In a wonderful piece of investigative journalism, CH Unni reports on the rather “fishy” move to divest the current Controller General, PH Kurian of his “trademark” portfolio.
Some see this as an attempt to reinstate a corrupt regime of the past…a regime that the efficient and energetic Kurian helped clean up to a large extent. Kurian’s reformist zeal in terms of ushering in major transparency measures helped lend significant accountability and credibility to a much maligned and opaque office. But his reforms appear to have rubbed some folks the wrong way.
Sadly, the present move does nothing of that sort. In fact, in so far as the government attempts to completely divest Kurian of his “trademark” portfolio, the move could be questioned legally. For under the present scheme, there is only one CG for both patents and trademarks. The government may delegate some of the functions of the CG to another officer–but this is a very limited power…and it is for the CG to decide from time to time as to what powers he wishes to delegate to this new incumbent….
In other words, Kurian cannot be completely divested of his powers of “trademark” superintendence, unless the trademarks act is amended by Parliament.
As I had stated in my interview to Unni,
“Bringing in an outside IAS officer as the present Controller General was perhaps the best thing the Manmohan Singh government did for our patent regime in a long time. With his bold reforms, particularly in terms of increasing the transparency of the office, the energetic PH Kurian has effectively managed to bring a decent amount of credibility to an office plagued for many years by allegations of corruption and inefficiency.
The trademarks office has been dogged with more corruption allegations than the patents office—which makes it even more imperative for the government to bring in a clean and efficient officer from the outside, if it is serious about reforming this office.”
Here is the complete article by Unni:
Trademarks section to move out of IP office
By CH Unni
India plans to spin off the trademark registry from its intellectual property (IP) office, which currently deals with trademarks, patents and designs.
A government official and a patent law expert said the move will bring more focus to both offices and help them deal with complex issues, but critics claim the change has been prompted by a desire to stop reforms instituted by the IP office’s new chief from changing the way trademarks are given.
To separate the two offices, the department of industrial policy and promotion (DIPP), the commerce ministry body under which the IP office falls, has already shifted some powers of the Controller General of Patents, Designs and Trademarks related to trademarks to another officer.
In January 2009, the government appointed P.H. Kurian to the top post in the IP office, the controller general. He has since tried to reform the way the office works and, in an attempt to cleanse the system of corrupt practices, transferred at least a dozen senior officials, mostly from the trademarks section, to other posts. He also made most information related to the processing of patents, designs and trademarks accessible online, reducing scope for corruption.
A senior official at the trademarks registry in Mumbai confirmed that the government had already made the change. “Part of the administrational powers of the trademark office has been shifted to senior joint registrar V. Ravi since 10 May by an internal order,” said this person, who did not want to be identified.
Ravi has been with the department for at least two decades. He declined to comment as he is not authorized to speak with the media.
V. Bhaskar, joint secretary, DIPP, said that a formal separation of patents and trademarks has been considered for better focus. “We are looking into the legal aspects of it,” he said.
An expert said the move could work for the better.
“Our current law makes it very clear that there can only be one controller general with overall powers of superintendence over both the patents and the trademark regimes. Given the increasing complexity of these regimes, and patents in particular, it may be desirable to have two heads in this regard,” said Shamnad Basheer, a patent law expert and ministry of human resource development chair at the National University of Juridical Sciences, Kolkata.
He added that such a change can be brought about only by amending the present Trademarks Act.
Under the trademark legislation, as it stands now, the government’s power is limited to appointing another officer to discharge some functions of the registrar (or controller general), as the latter may from time to time authorize. But the controller general remains in charge.
Meanwhile, critics of the government’s move said it would mean a return to the trademark office’s bad old ways. One of these, a patent and trademark agent in Mumbai, who didn’t want to be named due to business reasons, said that there have been at least a dozen cases of trademark officials receiving bribes being caught in the act. The change would “see many of these officers back to their earlier locations”.
“The administrational shuffle is quite vindictive to the strong reforms that the current controller general has initiated in the department in the last one-and-a-half years, and it will shift the system back to its inefficient past,” said Prabudha Ganguly, a Mumbai-based patents and trademarks consultant.
The trademarks office has been dogged with more corruption allegations than the patents office, which makes it even more imperative for the government to bring in a clean and efficient officer from the outside, if it is serious about reforming this office, said Basheer.
“If the government intends to change this scheme, it must do so through an amendment in the proper way. And must ensure that it gets someone from the outside to head up the trademarks division as well,” he added.
In 2008, Mint had investigated through a series of reports, instances of corruption in the IP office, related to the issuance of patents.
Dear Shamnad,
Although a great post but sorry to hear that instead of Mr. Kurian now Mr. Ravi will be taking care of certain important portfolios at TMR.
Want to know the honest opinion, Ravi has been there in TMR from last more than two decades but sorry to say if i can ‘he is nothing else but a jelly fish’. some one who is handling administration from two decades but still could nt do anything. Give him a query or for that matter talk to him of any grievence what you will get is ‘assurance’ and no action at all.
Hope guys sitting up there will stop playing politics and will get back Mr. Kurian…….
The Indian bureaucracy can be trusted to interfere with anything and anyone who has a style of functioning different than the norm. Mr. Kurian has an option of appointing a officer whom he deems fit at the post(Registrar)-then challenge the appointment made by the DIPP on the grounds of interference with functioning of his office.
Needless to say, the functioning of the patent/TM office would be watched closely.
Dear Shamnad,
This is a Former Examiner of Trade Mark worked on contract basis and is working in a private company now. It is my expectation that divesting of kurian from administrative functioning of trade mark office would lead to more conducive atmosphere for corrupt officials to enjoy and continue their corrupt practices.
Those T.M. officials who have been transferred in 2009 from New Delhi Office to Chennai as GI has been allocated a few trade mark works also.
Those T.M. officers who have been transferred in 2009 from New Delhi to Ahmedabad and kolkatta have come back to their heaven ‘New
Delhi’ where money could be easily plucked from tree.
For the last 6 months, there have been 7 resignations by examiners of trade marks who worked on contract basis with the meager salary. That meager salary which was fixed a decade before is still not revised. News Paper advertisement calling for appointment of examiner of trademark on contract basis published on 1st June 2010 itself specifies the same salary. This advertisement happened only after mr.ravi took special in charge for trade mark.
The advertisement specifies maximum age limit as 40 years. Same recruitment advertisement in 2006 fixed as 35 years and the advertisement in 2007 fixed as 30 years.
This factual things may not be relevant, but it has been done under Mr.Ravi as his new avatar.
My suggestion here is …
Why shouldn’t Mr.Kurian be retained for Trade Mark head and why not a new administrator for patent?
If this the proposal to the ministry of commerce is sent, the opposition would be from none other than the official from trade mark and the official in DIPP.
For only one reason we can say ‘yes’ to Mr Ravi as administrative head of trademark is his clean hand. Otherwise he is not equivalent to Mr.Kurian. He is totally an inactive person. Already he has been considered for the post of member in IPAB and the process is going as he is going to retire very soon. I think he is suitable for member in IPAB as it requires nothing big.
Given below proposals should be taken into account by whoever is going to take Trade Mark in charge for the best administration.
The working examiners who are not having Law graduation should not be allowed to take hearing.
No officials should be allowed to work in a same place more than 3 years continuously. It should be strictly followed.
Trade mark search should be made available to public free of cost.
The officials working in NIC attached with trade marks office should be kept out of reach of TM officers.
More examiners through UPSC should be appointed and imparted continuous training especially on legal and current judgments. (It would provide better service from the knowledgeable and legally qualified person as well as prevent the lobbying by the LDC, UDC and Asst. Examiners who do not want recruitment through upsc only by promotion.
Attainment of Examiner through promotion should be only after having Law graduation and the specific test conducted by department.
Formation of special team to check trade mark applications randomly to find out any acceptance of applications beyond the provisions of trade mark act, without compliance of provisions of the act and any mark which is not able to be registered. So that we can remove the marks like ‘FAT BASTARD’.
Many marks have been accepted that fall in wrong class. Supreme court has categorically held that marks registered in wrong class is equal to unregistered. Mainly, the section 6(4), registration by trust, is not being followed properly. Registration of personal photograph as trade mark requires no objection certificate from the person or his legal heirs. These are all not strictly followed and implemented.
Dear Shamand
Thanks for highlighting the issues.In fact if at all Ministry is sincre to IPO Administration,it should have one CGPDTM to address all IP policies to cordinate with Ministry ,wipo or other international fora to be represent India, one Deputy CG for patent(technical) to look after the issues of patent and one Deputy CG for Trademarks(Technical)to look after the trademarks affaires like ipo functions administered in Japan, USPTO or EPO as per Wordwide Practice . This kind of half hearted efforts will not lead any where except breed corrution in TMR or Patent office including GI.In my opinion this kind of issues to by addressed by PMO like Japan where IP Policy headquareter is located
Thank you very much for all your comments. I really think the government should think through the intended structure a bit more before it takes a final view on the matter. Perhaps it should also have consultations with IP stakeholders before it takes a final decision here. I think there is some sense in the recommendation of the last anonymous commentator that we have an overall head and then specific technical heads for patents and trademarks.
Thank you Shamnad for having brought this issue for a discussion. There is no doubt that the new move by the DIPP will undo all the good changes that Mr. Kurian has ushered in the TM office. As one of the commentators above has said Ravi has been notorious for his inactiveness and indecisiveness through out his career.But, this is what one can expect from a person who entered the service through back door. Yes, it is a fact that he got appointment in the Registry when Mr. Vedaraman was the Controller General, who happened to be Ravi’s father. I also agree that he himself is not corrupt. However, a person who facilitate corruption and harbour the corrupts is equally corrupt, one must say. As an IP Practitioner I can say that the endeavour of Kurian was to solve the chronic issues plagued the TMR, from the roots. To this end he has issued order to clear the matters pending for long, before taking up the rather recent ones. This has resulted in the back log in the examination front by about more than one year. In fact the vested interests both inside and outside the TMR has used this as a weapon to strike against Kurian coupled with strong lobbying with the ministry. I shall cite one small example of Ravi’s style of functioning which fundamentally different from that of Kurian. He has ordered the registration section of the TMR to change the status of the applications in the database which are due for registration as ‘Registered’ without actually issuing registration certificate. This was obviously to give a rosy picture about his functioning about the superiors while in reality it is very grim. Further, he ordered to stop considering the pending matters on the basis of seniority which will make way for the rampant corruption among the officers. Further, I strongly object to the opinion of one of the anonymous commentators that Ravi is the most befitting for the IPAB post. Yes, he is the best choice only if you want to see one more organisation collapsing.
nice post, but what could be the implications of separating the two offices? and if we look at the profile of the IP heads of US or japan or even greece the one who is heading the department is having a technical background as education. almost in every country the director or the commissioner of IP office is a person having a technical education followwed by a law degree. so why does an Indian Patent office has an IAS as its head??
Being associated with the trade mark registry for around a decade I feel that there have been good and bad times for the Trademarks Registry. It seems that the nepotism, red tapism and the unnecessary political intervention is ruining the technological enhancement of the trademarks registry. Unqualified and non competent people in command is seriously hampering its daily routines.
A cleaning attempt recently initiated also has been checkmated by the strong lobby that is trying and alsways tried to control the daily administrative activities of the registry.
It is highly essential that the autonomous functiong of the system without any political interventions and vested interests with command in the hands of those without any ulterior motives should be encouraged.
The international scenario should be considered and competent people should be in the system to clean the image of the highly corrupt trademarks registry.
Hope the government would strongly consider the independent views expressed though this blog and immidiate curative steps will be initiated.