Supreme Court of India: Section 85 of the Trademarks Act held Unconstitutional

August 17, 2015

Vide order dated July 27, 2015, the Hon’ble Supreme Court of India, has upheld the judgement dated March 10, 2015 of the Hon’ble Madras High Court in writ petition, W.P No. 1256 of 2011, declaring Section 85 of the Trade Marks Act, 1999 regarding the qualification and selection of members appointed to the Intellectual Property Appellate Tribunal (IPAB) as unconstitutional, being contrary to the basic structure of the Indian Constitution.

The Union of India filed Special Leave to Appeal (C) No(s). 18142/2015 (hereinafter “the SLP”) against the judgement/order dated March 10, 2015 in W.P No. 1256 of 2011 passed by a division bench of the Hon’ble Madras High Court, praying for the said judgement to be have quashed/set aside. However, the Hon’ble Supreme Court was pleased to dispose of the SLP by the following order;

“We do not find any legal and valid ground for interference. The special leave petition is dismissed.”

Vide our newsletter dated April 13, 2015 we have given an analysis of the aforementioned judgement dated March 10, 2015 of the Hon’ble Madras High Court in W.P No. 1256 of 2011 which may be accessed


Hence, the Supreme Court has upheld the Madras High Court’s order declaring the provisions regarding appointment of members to the IPAB as unconstitutional, it is now up to the legislature to take the necessary steps to bring the law in line with the Indian Constitution and the functionality of the IPAB may be temporarily affected due to this shift in the law.

What the future holds is yet to be seen.

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