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Chapter 11 – Appellate Board

BananaIP Counsels > Chapter 11 – Appellate Board

Chapter 11 – Appellate Board

 

Establishment of Appellate Board

 

83. 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.

 

Composition of Appellate Board

 

84.—(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.

 

Qualifications for Appointment as Chairman, Vice Chairman, or Other Members

 

85.—(1) A person shall not be qualified for appointment as the Chairman unless he—

 

(a) is, or has been, a Jude 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 I 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
(43 of 1958)

 

(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.

 

Term of Office of Chairman, Vice chairman and Other Members

 

86. 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.

 

 

Vice-Chairman or Senior-Most Member to Act as Chairman or Discharge his Functions in Certain Circumstances

 

87.—(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.

 

Salaries, Allowances and Other Terms and Conditions of Service of Chairman, Vice Chairman and Other Members

 

88.—(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.

 

Resignation and Removal

 

89.—(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).

 

Staff of Appellate Board

 

90.—(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.

 

Appeals to Appellate Board

 

91.—(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.

 

Procedure and Powers of Appellate Board

 

92.—(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 the 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.
(5 of 1908)

 

(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:—
(5 of 1908)

 

(a) Receiving evidence;

 

(b) Issuing commissions for examination of witnesses;

 

(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.
(45 of 1860 & 2 of 1974)

 

Bar of Jurisdiction of Courts, etc.

 

93. 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.

 

Bar to Appear Before Appellate Board

 

94. On ceasing to hold office, the Chairman, Vice-Chairman or other Members shall
not appear before the Appellate Board or the Registrar.

 

Conditions as to Making of Interim Orders

 

95. 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.
Power of Chairman to Transfer Cases from one Bench to Another

 

96. 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.

 

Procedure for Application for Rectification, etc. Before Appellate Board

 

97.—(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.

 

Appearance of Registrar in Legal Proceedings

 

98.—(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.

 

Costs of Registrar in Proceedings Before Appellate Board

 

99. 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.

 

Transfer of Pending Proceedings to Appellate Board

 

100. All cases of appeals against any order of 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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