Intellectual
Property Rights
Trade
Marks Act, 1999
CHAPTER XI: APPELLATE BOARD
83. Establishment of Appellate Board
The Central
Government shall, by notification in the Official Gazette, establish an
Appellate Board to be known as the Intellectual Property Appellate Board
to exercise the jurisdiction, powers and authority conferred on it by
or under this Act.
84. Composition of Appellate Board
(1) The
Appellate Board shall consist of a Chairman, Vice-Chairman and such number
of other Members, as the Central Government may, deem fit and, subject
to the other provisions of this Act, the jurisdiction, powers and authority
of the Appellate Board may be exercised by Benches thereof.
(2) Subject to the other provisions
of this Act, a Bench shall consist of one Judicial Member and one Technical
Member and shall sit at such place as the Central Government may, by notification
in the Official Gazette, specify.
(3) Notwithstanding anything contained
in sub-section (2), the Chairman-
(a) 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;
(b) may transfer a Member from
one Bench to another Bench;
(c) may authorise the Vice-Chairman,
the Judicial Member or the Technical Member appointed to one Bench to
discharge also the functions of the Judicial Member or the Technical member,
as the case may be, of another Bench.
(4) Where any Benches are constituted,
the Central Government may, from time to time, by notification, make provisions
as to the distribution of the business of the Appellate Board amongst
the Benches and specify the matters which may be dealt with by each Bench.
(5) If any question arises as
to whether any matter falls within the purview of the business allocated
to a Bench, the decision of the Chairman shall be final.
Explanation : For the removal
of doubts, it is hereby declared that the expression matter" includes
an appeal under section 91.
(6) If
the Members of a Bench differ in opinion on any point, they shall state
the point or points on which they differ, and make a reference to the
Chairman who shall either hear the point or points himself or refer the
case for hearing on such point or points by one or more of the other Members
and such point or points shall be decided according to the opinion of
the majority of the Members who have heard the case, including those who
first heard it.
85. Qualifications for appointment as Chairman, Vice-Chairman,
or other Members
(1) A person
shall not be qualified for appointment as the Chairman unless he-
(a) is, or has been, a judge of
a High Court; or
(b) has, for at least two years,
held the office of a Vice-Chairman.
(2) A person shall not be qualified
for appointment as the Vice-Chairman, unless he-
(a) has, for at least two years,
held the office of a Judicial Member or a Technical Member; or
(b) has been a member of the Indian
Legal Service and has held a post in Grade I of that Service or any higher
post for at least five years.
(3) A person shall not be qualified
for appointment as a Judicial Member, unless he-
(a) has been a member of the Indian
Legal Service and has held the post in Grade 1 of that Service for at
least three years; or
(b) has, for at least ten years,
held a civil judicial office.
(4) A person shall not be qualified
for appointment as a Technical Member, unless he-
(a) has, for at least ten years,
exercised functions of a tribunal under this Act or under the Trade and
Merchandise Marks Act, 1958, or both, and has held a post not lower than
the post of a Joint Registrar for at least five years; or
(b) has, for at least ten years,
been an advocate of a proven specialised experience in trade mark law.
(5) Subject to the provisions
of sub-section (6), the Chairman, Vice-Chairman and every other Member
shall be appointed by the President of India.
(6) No
appointment of a person as the Chairman shall be made except after. consultation
with the Chief Justice of India.
86.
Term of office of Chairman, Vice-Chairman and other Members
The Chairman,
Vice-Chairman or other Members shall hold office as such for a term of
five years from the date on which he enters upon his office or until he
attains,-
(a) in the case of Chairman and
Vice-Chairman, the age of sixty-five years; and
(b) in
the case of a Member, the age of sixty-two years, whichever is earlier.
87. Vice-Chairman or senior-most Member to act as Chairman or
discharge his functions in certain circumstances
(1) In
the event of or any vacancy in the office of the Chairman by reasons of
his death, resignation or otherwise, the Vice-Chairman and in his absence
the senior-most Member shall act as Chairman until the date on which a
new Chairman, appointed in accordance with the provisions of this Act
to fill such vacancy, enters upon his office.
(2) When
the Chairman is unable to discharge his functions owing to his absence,
illness or any other cause, the Vice-Chairman and in his absence the senior-most
Member shall discharge the functions of the Chairman until the date on
which the Chairman resumes his duty.
88. Salaries, allowances. and other terms and conditions of service of
Chairman, Vice-Chairman and other Members
(1) The
salaries and allowances payable to, and other terms and conditions of
service (including pension, gratuity and other retirement benefits) of
the Chairman, Vice-Chairman and other Members shall be such as may be
prescribed.
(2) Notwithstanding
anything contained in sub-section (1), a person who, immediately before
the date of assuming office as the Chairman, Vice-Chairman or other Member
was in service of Government, shall be deemed to have retired from service
on the date on which he enters upon office as the Chairman, Vice-Chairman
or other Member.
89. Resignation and removal
(1) The
Chairman, Vice-Chairman or any other member may, by notice in writing
under his hand addressed to the President of India, resign his office:
PROVIDED that the Chairman, Vice-Chairman
or any other Member shall, unless he is permitted by the President of
India to relinquish his office sooner, continue to hold office until the
expiry of three months from the date of receipt of such notice or until
a person duly appointed as his successor enters upon his office or until
the expiry of his term of office, whichever is earlier.
(2) The Chairman, Vice-Chairman
or any other Member shall not be removed from his office except by an
order made by the President of India on the ground of proved misbehaviour
or incapacity after an inquiry made by a Judge of the Supreme Court in
which the Chairman, Vice-Chairman or other Member had been informed of
the charges against him and given a reasonable opportunity of being heard
in respect of those charges.
(3) The
Central Government may, by rules, regulate the procedure for the investigation
of misbehaviour or incapacity of the Chairman, Vice-Chairman or other
Member referred to in sub-section (2).
90. Staff of Appellate Board
(1) The
Central Government shall determine the nature and categories of the officers
and other employees required to assist the Appellate Board in the discharge
of its functions and provide the Appellate Board with such officers and
other employees as it may think fit.
(2) The salaries and allowances
and conditions of service of the officers and other employees of the Appellate
Board shall be such as may be prescribed.
(3) The
officers and other employees of the Appellate Board shall discharge their
functions under the general superintendence of the Chairman in the manner
as may be prescribed.
91. Appeals to Appellate Board
(1) Any
person aggrieved by an order or decision of the Registrar under this Act,
or the rules made thereunder may prefer an appeal to the Appellate Board
within three months from the date on which the order or decision sought
to be appealed against is communicated to such person preferring the appeal.
(2) No appeal shall be admitted
if it is preferred after the expiry of the period specified under sub-section
(1):
PROVIDED that an appeal may be
admitted after the expiry of the period specified therefor, if the appellant
satisfies the Appellate Board that he had sufficient cause for not preferring
the appeal within the specified period.
(3) An
appeal to the Appellate Board shall be in the prescribed form and shall
be verified in the prescribed manner and shall be accompanied by a copy
of the order or decision appealed against and by such fees as may be prescribed.
92. Procedure and powers of Appellate Board
(1) The
Appellate Board shall not be bound by the procedure laid down in the Code
of Civil Procedure, 1908 but shall be guided by principles of natural
justice and subject to such provisions of this Act and the rules made
thereunder, the Appellate Board shall have powers to regulate its own
procedure including the fixing of places and times of its hearing.
(2) The Appellate Board shall
have, for the purpose of discharging its functions under this Act, the
same powers as are vested in a civil court under the Code of Civil Procedure,
1908 while trying a suit in respect of the following matters, namely:-
(a) receiving evidence;
(b) issuing commissions for examination
of witness;
(c) requisitioning any public
record; and
(d) any other matter which may
be prescribed.
(3) Any
proceeding before the Appellate Board shall be deemed to be a judicial
proceeding within the meaning of sections 193 and 228, and for the purpose
of section 196, of the Indian Penal Code, and the Appellate Board shall
be deemed to be a civil court for all the purposes of section 195 and
Chapter XXVI of the Code of Criminal Procedure, 1973.
93. Bar of jurisdiction of courts, etc.
No court
or other authority shall have or, be entitled to, exercise any jurisdiction,
powers or authority in relation to the matters referred to in sub-section
(1) of section 91.
94. Bar to appear before Appellate Board
On ceasing
to hold office, the Chairman, Vice-chairman or other Members shall not
appear before the Appellate Board or the Registrar.
95. Conditions as to making of interim orders
Notwithstanding
anything contained in any other provisions of this Act or in any other
law for the time being in force, no interim order (whether by way of injunction
or stay or any other manner) shall be made on, or in any proceedings relating
to, an appeal unless-
(a) copies of such appeal and
of all documents in support of the plea for such interim order are furnished
to the party against whom such appeal is made or proposed to be made;
and
(b) opportunity
is given to such party to be heard in the matter.
96. Power of Chairman to transfer cases from one Bench to another
On the
application of any of the parties and after notice to the parties, and
after hearing such of them as he may desire to be heard or on his own
motion without such notice, the Chairman may transfer any case pending
before one Bench, for disposal, to any other Bench.
97. Procedure for application for rectification, etc., before
Appellate Board
(1) An
application for rectification of the register made to the Appellate Board
under section 57 shall be in such form as may be prescribed.
(2) A
certified copy of every order or judgement of the Appellate Board relating
to a registered trade mark under this Act shall be communicated to the
Registrar by the Board and the Registrar shall give effect to the order
of the Board and shall, when so directed, amend the entries in, or rectify,
the register in accordance with such order.
98. Appearance of Registrar in legal proceedings
(1) The
Registrar shall have the right to appear and be heard-
(a) in any legal proceedings before
the Appellate Board in which the relief sought includes alteration or
rectification of the register or in which any question relating to the
practice of the Trade Marks Registry is raised;
(b) in any appeal to the Board
from an order of the Registrar on an application for registration of a
trade mark-
(i) which is not opposed, and
the application is either refused by the Registrar or is accepted by him
subject to any amendments, modifications, conditions or limitations, or
(ii) which has been opposed and
the Registrar considers that his appearance is necessary in the public
interest,
and the Registrar shall appear
in any case if so directed by the Board.
(2) Unless
the Appellate Board otherwise directs, the Registrar may, in lieu of appearing,
submit a statement in writing signed by him, giving such particulars as
he thinks proper of the proceedings before him relating to the matter
in issue or of the grounds of any decision given by him affecting it,
or of the practice of the Trade Marks Registry in like cases, or of other
matters relevant to the issues and within his knowledge as Registrar,
and such statement shall be evidence in the proceeding.
99. Costs of Registrar in proceedings before Appellate Board
In all
proceedings under this Act before the Appellate Board the costs of the
Registrar shall be in the discretion of the Board, but the Registrar shall
not be ordered to pay the costs of any of the parties.
100. Transfer of pending proceedings to Appellate Board
All cases
of appeals against any order or decision of the Registrar and all cases
pertaining to rectification of register, pending before any High Court,
shall be transferred to the Appellate Board from the date as notified
by the Central Government in the Official Gazette and the Appellate Board
may proceed with the matter either de novo or from the stage it was so
transferred.
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