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2021 (2) TMI 771 - SC - Indian LawsRight to be appointed / function as Chairperson Intellectual Property Appellate Board, till a new chairperson of Board is appointed - The applicant seeks extension of the term of the incumbent Chairperson of the board - Crossing the age limit of 65 years - Trademarks Act, 1999 - HELD THAT - Section 84 (2) of the TM Act no doubt states that a bench of the board shall consist of a judicial and a technical member. However, it is subject to other provisions of the TM Act. Section 84(3) commences with a non obstante clause and stipulates, by Section 84(3)(a) that a chairperson may, in addition to discharging the functions of the Judicial Member or Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench. Thus, in the absence of any member, the chairperson may, if the occasion so arises, act as technical or judicial member. Section 87 enables a vice-chairperson, or as the case may be the senior-most member of the board to act as chairperson in the event of a vacancy to that position, or in the event of the incumbent s inability to function in the post. Furthermore, significantly, Section 85 inter alia stipulates the qualifications for the post of chairperson or vice-chairperson. The relevant provisions of this section reveal that there is no bar for a technical member to be appointed as a regular chairperson, provided she or he has for at least two years, held the office of a Vice-Chairperson . In fact, the incumbent five technical members all hold legal qualifications (three of them holding masters in law, including one who holds a post-doctoral qualification). Four of these incumbent members were practising advocates in specialized fields of intellectual property (trademarks, and copyright) and one technical member (patents) had experience in the Patent Office. These members had practical legal experience of ten to fifteen years. The fact that they were appointed as technical members cannot obfuscate the fact that they are legally trained and qualified. Therefore, the argument that the technical members, in their position at the board as of now, cannot function without a chairperson, is unsustainable. Application dismissed.
Issues Involved:
1. Continuation of the incumbent Chairperson of the Intellectual Property Appellate Board (IPAB) post-31.12.2020. 2. Interpretation of Section 89A of the Trademarks Act, 1999, and Section 184 of the Finance Act, 2017. 3. Validity and implications of the 2017 and 2020 Rules under the Finance Act. 4. Necessity of a judicial member for the functioning of the IPAB. 5. Tenure and age limits for the Chairperson and members of the IPAB. Issue-wise Detailed Analysis: 1. Continuation of the Incumbent Chairperson of the IPAB: The applicant sought the continuation of the current Chairperson of the IPAB until a new appointment is made. The applicant argued that the Chairperson's tenure should be extended based on the provisions of Section 184 of the Finance Act, 2017, which prescribes the term of office and conditions of service for tribunal members. The court examined the tenure of the incumbent Chairperson, who was initially appointed under the 2017 Rules, and found that his tenure ended on 21.09.2019. The court concluded that the incumbent could not continue in office beyond this date as the 2017 Rules had been declared unconstitutional, and no interim relief was provided to extend his tenure beyond the stipulated period. 2. Interpretation of Section 89A of the Trademarks Act, 1999, and Section 184 of the Finance Act, 2017: The applicant contended that Section 89A of the Trademarks Act, inserted by the Finance Act, 2017, should govern the term of office and conditions of service for the Chairperson and members of the IPAB. The court noted that Section 89A supersedes the pre-existing age and tenure limits specified in Section 86 of the Trademarks Act. However, the Finance Act only provides potential maximum age limits and tenure limits, with the actual terms to be specified by the Central Government through rules. The court found that the Central Government had fixed the tenure of the Chairperson at three years, which had already ended on 21.09.2019. 3. Validity and Implications of the 2017 and 2020 Rules under the Finance Act: The court discussed the constitutional validity of the 2017 Rules, which were struck down in the Rojer Mathew case, and the subsequent 2020 Rules, which were read down in the Madras Bar Association case. The court highlighted that the 2017 Rules were declared unconstitutional on 13.11.2019, and the interim orders during the pendency of the Rojer Mathew case did not extend the tenure of the incumbent Chairperson beyond 21.09.2019. The court also noted that the 2020 Rules did not prescribe a maximum tenure for the Chairperson, further complicating the situation. 4. Necessity of a Judicial Member for the Functioning of the IPAB: The applicant argued that the IPAB cannot function without a judicial member and that the current Chairperson is the only judicial member. The court examined Section 84(2) of the Trademarks Act, which requires a bench of the IPAB to consist of a judicial and a technical member. However, the court noted that Section 84(3) allows the Chairperson to discharge the functions of both a judicial and technical member if necessary. The court also pointed out that the Vice-Chairperson or the senior-most member could act as Chairperson in the event of a vacancy or inability of the Chairperson to function, as per Section 87 of the Trademarks Act. 5. Tenure and Age Limits for the Chairperson and Members of the IPAB: The court examined the tenure and age limits prescribed by the Finance Act, 2017, and the Trademarks Act. It noted that the Finance Act sets a maximum age limit of 70 years for the Chairperson but allows the Central Government to specify the actual tenure through rules. The court found that the 2017 Rules had fixed the tenure of the Chairperson at three years, which had already ended. The court also observed that the 2020 Rules did not prescribe a maximum tenure, and even if they were applied, the four-year period would have ended on 21.09.2020. Conclusion: The court concluded that the applicant could not be granted any relief, as the tenure of the incumbent Chairperson had already ended, and there were no provisions to extend it further. The court dismissed the application, emphasizing that the IPAB could function with the existing members, including technical members who are legally qualified. The court also highlighted that the Central Government should expedite the appointment of a new Chairperson to ensure the smooth functioning of the IPAB.
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