A writ petition has been filed before the Madras High Court, challenging the legality of the Intellectual Property Appellate Board (IPAB), a specialized Intellectual Property tribunal. The IPAB has been constituted by the Government in order to have specialist Intellectual Property (IP) judges who would understand technical nuances of IP disputes and render quicker and better justice to IP stakeholders.

The present writ petition (WP No: 1256 of 2011) has been filed by Prof. Shamnad Basheer (who is the Ministry of HRD Professor of IP Law at WB NUJS) and his research associate, Prashant Reddy (who first initiated and pointed out the various infirmities at the IPAB) along with the help of three law students - Sai Vinod, Shambo Nandy and Debanshu Khettry.

Speaking to Bar & Bench on the status of the petition, Prof. Shamnad Basheer (Petitioner) said, “The petition was listed for today and was heard by a Madras High Court Bench comprising of Chief Justice M. Yusuf Eqbal and Justice T.S. Sivagnanam. The judges initially expressed some doubt about whether they should admit the case or not. They thought that since the appointments to the IPAB were made by the Supreme Court, the apex court would be the right forum for such a matter”.

“Senior Advocate Arvind Datar appearing pro-bono for us addressed the Bench and stated, that this precisely is the problem. Neither the Supreme Court nor the High Courts have any say in the vast majority of appointments to this Board. It is done exclusively by the Government in violation of constitutional norms. Thereupon the judges admitted the Writ Petition. The Government’s Additional Solicitor General, M. Raveendran was present to ensure that no stay was granted. The Court has issued notice and has asked the Government to file its reply within 3 weeks”.

Prof. Shamnad also pointed out, that a similar petition challenging the constitutionality of the Copyright Board, another incompetent tribunal was also admitted immediately after the IPAB petition. This writ has been filed by Advocate Ananth Padmanabhan on behalf of SIMCA (South India Music Companies Association), a recording industry association from South India. Senior Advocate Arvind Datar appeared for this matter as well.

Senior Advocate Arvind Datar, a constitutional law expert is appearing pro-bono for the petitioners along with assistance from Advocate Ananth Padmanabhan.

Appointment Problems IPAB: Sadly, the IPAB has underperformed on all counts. Its structure and appointments till date make it subject to Government interference. It also suffers from a lack of relevant IP expertise and many of its orders are routinely overturned by High Courts and in the last year, almost 75 percent of its orders were reversed by the High Court.

A press note by the Petitioners state, “The eligibility criteria for appointment to the IPAB has been crafted with a view to favouring ILS officers who see this as a plum posting with significant social status and little work. In fact, the IPAB is known to have sittings for only around 100 days a year, when regular High Courts sit for more than twice that amount of time. Further, barring one adjudicator who recently retired, none of the IPAB members who have been appointed till date were ever known for their IP expertise prior to being appointed.

In fact, we found that the appointment of Mr. Syed Obaidur Rahman to the IPAB is a deeply problematic one. In his application to be appointed as an IPAB adjudicator with “trademark expertise”, Mr. Syed Obaidur Rahaman was asked to provide some information on his so called “trademark” expertise. He provided this by stating that he had appeared in a dozen leading IP cases. When we verified these cases, we found that he had appeared in none of them! What makes these falsities even worse is the fact that he has cited English cases which were decided in the years 1887, 1904 and 1935 to his credit. If this were to be true, Mr. Rahaman would have to be more than 150 years old today! And also qualified to have appeared before the English Bar more than 100 years ago! What is worse than Mr. Rahman’s blatantly false and clumsy lies is the fact that the Government officials who appointed him did not bother to scrutinise all this information that he submitted. Here again, contrary to constitutional law norms, which require that every appointment to a tribunal must be made in consultation with at least a High Court judge. In this case, most appointments are made solely at the whim of the Government (executive)”.

Prof. Shamnad Basheer recently founded P-PIL (Promoting Public Interest Lawyering), an initiative aimed at using the “law” and legal instruments to promote public interest causes. For instance, this Writ Petition against the IPAB was the collaborative effort of legal academia and the legal profession, which came together to leverage their respective resources and talents. The present Writ Petition is the first project undertaken by P-PIL, which hopes to file many more public interest cases in the months to come.

A copy of the Writ Petition filed by the NUJS team is available here.