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India: President Promulgates Ordinance to Abolish IPAB

April 6, 2021

The Ministry of Law and Justice on April 04, 2021 has issued an Ordinance namely, The Tribunals Reforms (Rationalisation and Conditions Of Service) Ordinance, 2021 to further amend the Cinematograph Act, 1952, the Customs Act, 1962, the Airports Authority of India Act, 1994, the Trade Marks Act, 1999 and the Protection of Plant Varieties and Farmers’ Rights Act, 2001 and certain other Acts[1]. The Ordinance has come into effect from April 04, 2021 itself.

Tribunal Reforms (Rationalisation and Conditions of Service) Bill, 2021

In the context of aforesaid Ordinance, it would be relevant to mention that on February 13, 2021 the Tribunal Reforms (Rationalisation and Conditions of Service) Bill, 2021, providing for the abolition of Appellate Tribunals under certain Statutes including the abolition of the IPAB (Intellectual Property Appellate Board) was introduced in the Lok Sabha[2].

The present Ordinance mentions that the said Bill could not be taken up for consideration and passing in the Lok Sabha as the Parliament was not in session. However, the President of India is now satisfied that circumstances exist and is of the view that immediate action shall be taken with respect to the Bill and hence has promulgated the present Ordinance.

Tribunals Abolished!!

  1. Appellate Tribunal under Cinematograph Act, 1952 (37 of 1952).
  2. Authority for Advance Rulings under Income-tax Act, 1961 (43 of 1961).
  3. Airport Appellate Tribunal under Airports Authority of India Act, 1994 (Act 55 of 1994).
  4. Intellectual Property Appellate Board under Trade Marks Act, 1999 (47 of 1999).
  5. Plant Varieties Protection Appellate Tribunal under Protection of Plant Varieties and Farmers’ Rights Act, 2001 (53 of 2001).

Section 15 of the Ordinance enumerating the Transitional Provisions, states that any person appointed as the Chairperson or Chairman or President or Presiding Officer or Vice-Chairperson or Vice-Chairman or Vice President or Member of the Tribunal, Appellate Tribunal, or, Authorities (as aforesaid) shall cease to hold Office from the notified date.

Fate of Proceedings and Appeals pending with the mentioned Tribunals including IPAB

With respect to any appeal, application or proceeding pending before the Tribunal, Appellate Tribunal or other Authorities as specified in the Schedule, the Ordinance provides that they shall stand transferred to the Court before which it would have been filed had this Ordinance been in force on the date of filing of such appeal or application and that the Court may proceed to deal with such cases from the stage at which it stood before such transfer, or from any earlier stage, or de novo, as the Court may deem fit.

Abolition of IPAB under the IP Acts

The amendments brought about by the Ordinance in the IP Acts are as under:

IP ACT AMENDMENT
PATENT ACT, 1970 ·         Definition of “Appellate Board” under Section 2(1)(a) has been omitted.

·         Definition under Section 2 clause (u), sub-clause (B) shall be omitted

·         Sections 52, 58, 59, 64, 76 and 113- Omits the words “Appellate Board”

·         Sections 71 – for the words “Appellate Board” and “Board”, words “High Court” shall be substituted

 

·         Sections 116 and 117 shall be omitted

 

·         Section 117A and 117E- for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted.

 

·         Sections 117B, 117C and 117D shall be omitted

 

·         Sections 117F, 117G and 117H shall be omitted

 

·         Section 151(1)- for the words “Appellate Board” wherever they occur shall be omitted

 

·         Section 115(B)(3)- for the words “the Appellate Board or the courts, as the case may be”, the words “the courts” shall be substituted

 

·         Section 159, in sub-section (2), clauses (xiia), (xiib) and (xiic) shall be omitted.

TRADE MARKS

ACT, 1999

·         Definition- Under Section 2 clauses (a), (d), (f), (k), (n), (ze) and (zf)

·         shall be omitted-

 

·         Definition amended under Section 2(s)- “prescribed” means,—

·         in relation to proceedings before a High Court, prescribed by rules made by the High Court; and

·         in other cases, prescribed by rules made under this Act;’;

 

·         Section 10- for the word “tribunal”, the words “Registrar or the High Court, as the case may be,” shall be substituted

 

·         Section 26- for the word “tribunal”, the words “Registrar or the High Court, as the case may be,” shall be substituted

 

·         Section 46, in sub-section (3), for the word “tribunal”, the words “Registrar or the High Court, as the case may be,” shall be substituted

 

·         Section 47- for the words “Appellate Board”, at both the places where it occurs, the words “High Court” shall be substituted and in Section 47(ii)- for the word “tribunal”, wherever it occurs, the words “Registrar or the High Court, as the case may be,” shall be substituted;

 

·         Section 55- in sub-section (1), for the word “tribunal”, the words “Registrar or the High Court, as the case may be,” shall be substituted;

 

·         Section 57- For the words “Appellate Board”, wherever it occurs, the words “High Court” shall be substituted

 

·         Section 71, in sub-section (3), for the word “tribunal”, the words “Registrar or the High Court, as the case may be,” shall be substituted;

 

·         Chapter heading “APPEALS” shall be substituted and Sections 83, 84, 85, 86, 87, 88, 89, 89A and 90 shall be omitted;

 

·         Section 91- for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted

 

·         Sections 92 and 93 shall be omitted

 

·         In place of Section 94, the following section shall be substituted, namely: –– On ceasing to hold the office, the erstwhile Chairperson, Vice-Chairperson or other Members, shall not appear before the Registrar.”;

 

·         Sections 95 and 96 shall be omitted;

 

·         Sections 97 and 98- for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted;

 

·         Sections 99 and 100 shall be omitted;

 

·         Section 113- for the words “Appellate Board”, at both the places where they occur, the words “High Court” shall be substituted

 

·         Section 123, the words “and every Member of the Appellate Board” shall be omitted;

 

·         Sections 124 and 125- for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted

 

·         Section 130, the words “the Appellate Board or” shall be omitted;

 

·         Section 141- for the words “Appellate Board”, at both the places where they occur, the words “High Court” shall be substituted

·         Section 157, in sub-section (2),–– (i) clauses (xxxi) and (xxxii) shall be omitted;

 

·         Section 157(2) (xxxiii)- for the words “Appellate Board”, the words “High Court” shall be substituted.

COPYRIGHT ACT, 1957 ·         Section 2(i) clause (aa) shall be omitted; (ii) clause (fa) shall be re-lettered as clause (faa) and before the clause (faa) the following clause shall be inserted, namely: ––

 

·         Insertion of Clause (fa) under Section 2 providing definition of “Commercial Court” as- for the purposes of any State, means a Commercial Court constituted under section 3, or the Commercial Division of a High Court constituted under section 4, of the Commercial Courts Act, 2015;

 

·         (iii) for clause (u), the following clause shall be substituted, namely: ––

·         ‘(u) “prescribed” means, —

·         in relation to proceedings before a High Court, prescribed by rules made by the High Court; and

·         in other cases, prescribed by rules made under this Act;’;

 

·         Section 6- for the words “Appellate Board”, wherever they occur, the words “Commercial Court” shall be substituted

 

·         Under Chapter II, the Chapter heading, the words “AND APPELLATE BOARD” shall be omitted;

 

·         Sections 11 and 12 shall be omitted;

 

·         Sections 19A, 23, 31, 31A, 31B, 31C, 31D, 32, 32A and 33A- for the words “Appellate Board”, wherever they occur, the words “Commercial Court” shall be substituted;

 

·         Section 50- for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted;

 

·         Section 53A-

·         for the words “Appellate Board”, wherever they occur, the words “Commercial Court” shall be substituted;

·         in sub-section (2), the words “and the decision of the Appellate Board in this behalf shall be final” shall be omitted;

·         (h) in section 54, for the words “Appellate Board”, the words “Commercial Court” shall be substituted;

 

·         Amended Section 72- provides that any person aggrieved by any final

·         decision or order of the Registrar of Copyrights may, within three months from the date of the order or decision, appeal to the High Court.

 

·         Sections 74 and 75- the words “and the Appellate Board”, shall be omitted

 

·         Section 77, the words “and every member of the Appellate Board” shall be omitted;

 

·         Section 78 clauses (cA) and (ccB) shall be omitted and in sub-section (2) (ii) (f)- the words “and the Appellate Board” shall be omitted.

PLANT VARIETIES AND FARMERS’ RIGHTS

ACT, 2001

·         Under Section 2(i) clauses (d), (n) and (o) shall be omitted;

·         (ii) for clause (q), the following clause shall be

·         substituted, namely:––

·         ‘(q) “prescribed” means,—

·         in relation to proceedings before a High Court, prescribed by rules made by the High Court; and

·         in other cases, prescribed by rules made under this Act;’:

·         (iii) clauses (y) and (z) shall be omitted;

 

·         Under Section 44, the words “or the Tribunal” shall be omitted;

·         (c) in Chapter VIII, for the Chapter heading, the Chapter heading “APPEALS” shall be substituted;

 

·         Sections 54 and 55 shall be omitted;

 

·         Section 56,––

o   for the word “Tribunal”, wherever they occur, the words “High Court” shall be substituted;

o   sub-section (3) shall be omitted;

 

·         Under Section 57,– (i) for the word “Tribunal”, wherever it occurs, the

·         words “High Court” shall be substituted;

 

·         Sections 58 and 59 shall be omitted;

 

·         Under Section 89, the words “or the Tribunal” shall be omitted.

GI Act ·         Under Section 2, in sub-section (1), clauses (a)

·         and (p) shall be omitted;

 

·         Under Section 19 (b) for the word “Tribunal”, the words “Registrar or the High Court, as the case may be,” shall be substituted;

 

·         Under Section 23, for the words “and before the Appellate Board before which”, the words “before whom” shall be substituted;

 

·         Under Section 27, ––

 

for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted;

for the word “tribunal”, wherever it occurs, the words “Registrar or the High Court, as the case may be,” shall be substituted;

 

·         Under Chapter VII, for the Chapter heading, the APPEALS” shall be substituted;

 

·         Under Section 31 for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted and sub-section (3) shall be omitted;

 

·         Sections 32 and 33 shall be omitted;

 

·         For the words “Appellate Board” in Section 34 wherever they occur, the words “High Court” shall be substituted;

 

·         Section 36 shall be omitted;

 

·         Under Sections 48,––

·         for the words “Appellate Board”, at both the places where it occurs, the words “High Court” shall be substituted;

·         for the word “tribunal”, the words “Registrar or the High Court, as the case may be,” shall be substituted;

 

·         Under Sections 57 and 58, for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted;

 

·         Under Section 63, the words “the Appellate Board or” shall be omitted;

 

·         Under Section 72, for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted;

 

·         Under Section 75, for the word “tribunal”, the words “Registrar or the High Court, as the case may be,” shall be substituted;

 

·         Under Section 87, in sub-section (2), clause (n) shall be omitted.

Conclusion

The Ordinance brings about a dramatic transition in the IP landscape of India by abolishing the IPAB. The functions of the IPAB have majorly been transferred to the High Courts and the Commercial Courts have been given powers under the Copyright Act, 1957.

The Tribunal Reforms (Rationalisation and Conditions of Service) Bill, 2021 notified in February, 2021 had struck a cacophonous debate in the IP fraternity while highlighting the various the pros and cons of the abolition of IPAB. Undeniably the abolition of IPAB will have repercussions far and wide, however, time will only decide the consequences and impact of the same on the Indian IP regime.

[1] http://egazette.nic.in/WriteReadData/2021/226364.pdf

[2] http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/19_2021_LS_Eng.pdf

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