| M J Antony: Quick-fix solution | |
| The Supreme Court should have speeded up tax cases, not luxury litigation, as it did recently | | M J Antony / New Delhi November 4, 2009, 0:59 IST | |
Two judgments of the Supreme Court delivered in recent weeks are significant as they highlight the problem of long delays in cases involving intellectual property rights and the quick-fix solution suggested by the court. It is well known that disputes over trademarks, patents and designs drag on for years. After the initial bout over interim injunctions, the parties sulk indefinitely, as the main relief has been granted by the interim order itself. Thus the main suit lies orphaned in court files.
This phenomenon was noted by the Supreme Court recently in Shree Vardhman Rice Mills vs Amar Singh Chawalwala. It explained the problem thus: “We are of the opinion that matters relating to trademarks, copyrights and patents should be finally decided very expeditiously by the trial court instead of merely granting or refusing to grant injunction. Experience shows that in such matters litigation is fought mainly, about temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally.”
The revered rule in the Civil Procedure Code, virtually forgotten by the legal profession as well as the courts, is that when a hearing of a suit has commenced, “it shall be continued from day to day until all the witnesses have been examined.” The Supreme Court stressed in the ‘Shree Vardhman’ decision that the rule should be “strictly complied with by all courts and the final judgment should be given normally within four months from the date of the filing of the suit.”
This order was cited and emphasised with greater vigour in a later case, Bajaj Auto Ltd vs TVS Motor Co Ltd. The litigation over the patent for a spark plug is two years old, and it has not moved from the stage of injunction despite two trips from the Madras high court to the Supreme Court. Though the suit was filed in December 2007, even the written statements have not been filed. On the last occasion, the Supreme Court said: “We direct that the directions in the Shree Vardhman order be carried out by all courts and tribunals in this country punctually and faithfully.”
Though the good intentions of the Supreme Court are beyond doubt, the virtual paralysis of the intellectual property right suits at the trial stage is not going to be cured with such a magic wand. The order will more likely be stacked along with its judgments prohibiting smoking in public places, Rs 50 fine for littering the capital’s roads, decibel limit and deadline on loudspeakers and lighting firecrackers.
Some recent cases reported in law journals indicate the complications involved in implementing the order. The dispute over the trade mark ‘Kangaro’ for pencils and stationery goods started in 1996. Three partnership firms with warring family members opened their litigation in Ludhiana with three injunction applications. The Supreme Court transferred them from Ludhiana to the Delhi high court. It passed an order in May this year, with a caveat: “This interim order will continue till the suits are finally decided.”
Another bitter dispute of the same vintage was between two sweet meat sellers over the name ‘Aggarwal’. The question was whether the caste/sect name can be registered as a trade mark. The Delhi high court found that the newly-established Intellectual Property Appellate Board had not discussed evidence on the ‘distinctiveness’ of the surname. The high court remanded the case to the board; it rebounded to the high court which has dismissed the application.
If cases involving pencils and laddus can last nearly two decades, battles involving multi-national companies have a greater potential for prolonged litigation. Last week, the Delhi high court dealt with the case between British company Horlicks Ltd and Heinz India Ltd over disparagement of their respective trade marks in beverages. The companies have been fighting for children’s minds in ‘Tom and Jerry’ fashion in Calcutta, Bombay and Delhi high courts since 2004 over their respective TV ads. Children drinking one beverage grew taller, the price tag shown was lower and several subliminal messages were involved. The Delhi high court concluded its 100-page judgment asking a judge of the same court to decide the interlocutory applications. That puts back the case in square one.
In this state of affairs, the Supreme Court could have left the big business to fight their luxury litigation leisurely. It should have noted that the situation in tax cases is truly alarming. Many appeals now being heard in the court belong to assessment years 1991-92. People’s money is involved in this wasteful litigation, and government defence is unable to match the might of the assessee’s counsel. There is nothing in the law minister’s recently celebrated ‘vision statement’ to recover the revenue caught up in debilitating court battles.
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