Certain provisions in Trademarks Act unconstitutional: HC

A sub-section of the Act qualifies a member of Indian Legal Service to the post of vice chairman of Intellectual Property Appellate Tribunal (IPAB)

Madras High Court today declared as unconstitutional a sub-section of Trade Marks Act, 1999 which qualifies a member of Indian Legal Service to the post of vice chairman of Intellectual Property Appellate Tribunal (IPAB).

The bench also made it clear that recommendation of Chief Justice of India to the post of IPAB Chairman be given due consideration by the Appointment Committee of the Cabinet.

It also said the process does not involve any 'approval', being an affront to separation of powers, independence of judiciary and basic structure of the Constitution.

The First Bench Comprising Chief Justice Sanjay Kishan Kaul and Justice M M Sundresh said Sub-section 2(b) of Section 85 of Trade Marks Act, 1999 is unconstitutional as it disposed of a petition by Shamnad Basheer of HRD Ministry, Chair Professor in Intellectual Property Rights, West Bengal National University of Judicial Sciences, Kolkatta.

It also declared as unconstitutional, Section 85(3)(a) of the Trade Marks Act, 1999, providing for eligibility of Grade 1 Indian Legal Service member for at least three years for appointment to the post of Judicial Member in IPAB and said it was contrary to the basic structure of the constitution.

The Bench directed the Secretary, Department of Industrial Policy and Promotion, Ministry of Industries and Commerce, to re-constitute the Committee, providing a predominant role in selection process to the judiciary for appointing members, both for the Vice-Chairman, Judicial Member and Technical Member.

It also declared that the search and selection committee for these three posts, headed by the secretary, department of industrial policy and promotion as its chairman, was loaded in favour of the executive, which is impermissible under law, as held by the Supreme Court.

In his petition, Basheer had called for scrutiny of Section 85 of the Trade Marks Act, 1999 on qualification and selection of Chairman, Judicial Member and Technical Member of IPAB, alleging a 'grave affront' to the basic structure enshrined in the Constitution.

He contended that the section impinges on independence of the judiciary and violates the doctrine of separation of powers between executive and judiciary. The basic structure as expounded by the Apex Court in various cases is violated. There was no statutory prescription for the selection process of members, Vice-Chairman and Chairman of IPAB, he alleged.

He alleged that a person not practicing as a lawyer is sought to be appointed as technical member, then Vice Chairman and Chairman, based on the office held by him earlier.

There is a discrepancy between the qualification of a Registrar under Trade Marks Act and Controller under Patent Act. In view of this, one with lesser number of years of service is likely to be appointed without adequate qualification, Basheer claimed.