Section 84(2) of the Trade Marks Act, read with Rule 20 of the IPAB (Procedure) Rules, 2003, require the presence of one Judicial Member and one Technical Member on the bench to form a quorum. Any order passed or hearing conducted without a quorum would, therefore, be illegal. Prof. Basheer had written about this requirement several years ago in a matter concerning Novartis’ blood cancer drug, in which advocates from both sides argued for the constitution of a bench without a Technical Member.
Presently, after the retirement of Technical Member, Sanjeev Kumar Chaswal from the IPAB took effect on December 5, 2018, the IPAB does not have a sitting Technical Member. Without a replacement, therefore, the IPAB has not had a quorum for over a month now.
It was brought to our notice that, due to this vacancy, several advocates had requested for adjournments until a new Technical Member is appointed, which have been granted. In a letter written by lawyers at ARS & Associates, Chandigarh, to the Deputy Registrar (on December 7, 2018), they had requested for an adjournment and specifically pointed out the illegality of any hearings or orders passed without a quorum –
“We write to submit herein that since the Hon’ble Shri Sanjeev Kumar Chaawal has recently retired from the post of ‘Technical Member (Trade Marks)’ with effect from 5-12-2018, it is therefore requested that the Hearing of the aforesaid matter, as having already been scheduled to be held at Delhi on 14-12-2018, may please be adjourned sine die until and unless a new Technical Member joins the Hon’ble Board, under intimation to us, at an early date, and oblige.
Any Hearing, it held and concluded by the Bench of the Hon’ble Board (not comprising of ‘one Judicial Member and one Technical Member and that too not complying with the mandatory provisions of the law as specifically embodied in Section 84 of the Trade Marks Act, 1999, read with Rule 20 of The Intellectual Property Appellate Board (Procedure) Rules, 2003) on 14-12-2018 and/or on any other date subsequent to the retirement of the above-named Technical Member would be unlawful and illegal and would also amount to negation of justice.”
Despite this letter to the Deputy Registrar, it seems that the IPAB has gone ahead with hearings, and has passed orders as well, with the bench consisting of Justice Manmohan Singh alone and no technical member. In a letter addressed to SpicyIP, lawyers from ARS & Associates note –
“It is stated herein that the Bench (comprising only of the Chairman Mr. Manmohan Singh) of the Board appears to have surprisingly gone to the extent of firstly passing and pronouncing various orders (and then purporting to have been withheld to be dispatched) in the open court and also to simultaneously grant the adjournments in various matters at Delhi and Mumbai, in the open Court and in the presence of the concerned Advocates”
And these allegations are not without proof. Our friends at ARS & Associates also apprised us of two orders passed in the cases of Puma SE v Arun Jain (on withdrawal) and Puma SE v Abishek Kumar (on settlement) on January 8, 2019, with only Justice Manmohan Singh on the bench. Furthermore, a cause list dated January 7, 2019, also reveals that 51 matters were listed for hearing before Justice Manmohan Singh without a Technical Member on the bench. Similar hearings had been occurring from December 12 to 21, 2018.
To add to this confused state of affairs, the IPAB website has not been functional for close to a month now, making it impossible to check if the IPAB has passed any other orders without a quorum. It would, therefore, be extremely helpful if our readers could share any leads on this development so that we can get to the bottom of this matter!
Picture from here.