Navigating the IP quagmire: Can CGPDTM overcome its long-standing challenges?

The ongoing turmoil within the Controller General of Patents, Designs, and Trademarks (CGPDTM) had long been foreseeable to informed onlookers of the convoluted Indian Intellectual Property (IP) domain. Difficulties varying from administrative inefficiencies to allegations of subjective verdict-making and insufficient personnel had plagued the office for over a decade.

Still, regardless of repeated judicial intercessions and assorted attempts at reform, the Controller General remained stuck in an unending pattern of dysfunction. Tiger Foods Ingredients (P) Ltd v. Registrar of Trademarks, as recently ruled on by the Madras High Court, exemplified this deeply ingrained sickness yet again, shedding light on the intricate issues within the Registry of Trade Marks through its revelation of arbitrary decision-making in the face of administrative absence and over-extension.

Analyzing the Tiger Foods judgment

In Tiger Foods, the petition sought a writ of mandamus to be issued to the Registrar of Trade Marks for expeditious disposal of the petitioner's application for name change. In its Form TM-P dated July 5, 2024, such application was filed. Surprisingly, the writ petition was filed within a mere five weeks (on August 11, 2024) after the original application. This made the Madras High Court observe that the petitioner was in undue haste and moved court without keeping reasonable time or exhausting the available remedy of seeking expeditious consideration by the Registry. But, despite such earlier anticipation of untimely filing, the Court deemed it "just and necessary" to direct the Registry to dispose of the application within six weeks.

Taken in isolation, the Tiger Foods judgment may look unsurprising: an impatient applicant rushing to court; the judiciary stepping in to oblige timely action. But in the larger concerns plaguing the CGPDTM, this case reveals a more basic, systemic problem - there's no trust in the Registry's ability to do its job effectively. This mistrust in turn has led stakeholders to seek judicial interference at the slight hint of delay, thereby overburdening an already suffering judiciary and adding more complexities to the overall IP management of India.

A pattern of judicial scrutiny and intervention

Tiger Foods is just the tip of the iceberg. For the past several years, courts have repeatedly stepped in to address issues of delay, inefficiency and non-transparency within the CGPDTM. For example, in Dr Reddy's Laboratories Limited v. CGPDTM, the Delhi High Court expressed serious concerns over the staggering backlog of oppositions - nearly 200,000 at the time - attributed to a lack of qualified officers. The Court directed the CGPDTM to present a comprehensive plan for dealing with this backlog, including a detailed chart of year-wise pending applications ripe for hearing.

What is particularly telling about Dr Reddy’s Laboratories is that it highlights a chronic issue: lack of adequate manpower. The CGPDTM’s repeated failure to hire and retain enough qualified officers has created a bottleneck, where applications and oppositions languish in limbo for years. Attempts to address this through temporary solutions, such as outsourcing trademark examinations to employees of the Quality Council of India, have backfired spectacularly. The orders issued by these contractual employees were subsequently invalidated, triggering a lengthy re-verification process that has only added to the confusion and delays.

A decade-old problem

The ills of the CGPDTM are not new. As long ago as 2008, a report by the Justice Allah Raham Committee even pointed out acute understaffing leading to a delaying of patent applications at processing. In the same breath, in the case Nitto Denko v. Union of India, the Delhi High Court severely criticised the Registry for causing inordinate delays in the issuing of first examination reports (FERs), particularly with regard to patents. For this very reason, the Court established a committee that was apt enough to propose a 12-step structure to expedite applications pertaining to various pleas under the intellectual property office. In fact, all the recommendations made have not been mostly implemented, as the same things happen today.

What is worrisome, however, is that the inefficiencies of the CGPDTM are now surfacing in areas beyond plain administrative delay. For years now, the office has been assailed for orders that are often reversed and even placed under reprimand by the courts themselves. The courts have, in fact, pointed out that this trend indicates an alarming arbitrariness and lack of observance of due process which runs antithetical to the quasi-judicial nature of the office and which further eats away stakeholder confidence.

Leadership crisis: Impact on policy and functionality

The structural problems are complemented by a leadership crisis. A recent writ petition challenging the appointment of Dr. Unnat P Pandit as the Controller General on grounds of alleged lack of qualifications and procedural lapses has cast a shadow over the leadership of the office. Though Dr. Pandit might be defending his position by terming the allegations baseless, the legal battle that is going on shows the lack of transparency in the selection process. That sparks controversies, demoralising staff further and creates uncertainty, which affects the functionality of the office.

In this light, the Tiger Foods judgment that looks like a futility acquires a new meaning. This is a rush to court. It is not just impatience, but rather is symptomatic of a much bigger problem: stakeholders don't believe that the Registry would process even the most mundane applications efficiently. In fact, they believe that unless an application is brought into court, it will be left unattended for months, if not years. This is scathing testimony of the state of affairs at the CGPDTM.

The appointment of Subhash Chandra Karol as head of the IT division at CGPDTM after a writ petition by the All India Patent Officers' Welfare Association (AIPOWA) exposes deeper systemic issues in India's IP office. The writ basically accused the office of arbitrary case re-allocations and procedural lapses and points towards a more general administrative flaw. The acts of the IT division, such as reassigning cases without very clear instructions and encouraging restored and rejuvenated applications previously denied before the new system, have had the effect of diminishing patent officers' quasi-judicial powers. Bid disputes on trademark examination contracts awarded have further eroded confidence in the overall efficiency of the office.

Relentless technical failures on the CGPDTM's website have added to frustrations, casting aspersion over the readiness of the office to keep pace with the rising demands of the new India IP landscape. The head of the CGPDTM, Dr. Unnat Pandit, faces added challenges amidst legal challenges that question his qualifications and the transparency of his appointment process. Courts time and again criticized the office for issuing poorly reasoned decisions, which reveal deeper procedural inefficiencies.

These recurring problems underscore the urgent need for all-round reforms. For the office to re-establish confidence and make CGPDTM an effective enabler of India's innovation and intellectual property function, the staff strengths need to be improved, its IT infrastructure upgraded, and transparency enhanced. Routine audit adoption, better systems of case allocation, and improved liaisons with the stakeholders would form some essential steps in addressing these recurring problems.

A call for comprehensive reform

Issues in the CGPDTM are rather deep-rooted and cannot be addressed piecemeal. Overhauling this institution's structure, staffing, and processes has to happen. Here are some targeted recommendations: 

1. Increase staffing and improve training: The CGPDTM needs to address its manpower shortage urgently. What is required in this situation is not mere increase in numbers, but also quality. Hiring well-qualified examiners and providing them with comprehensive training will ensure that applications and oppositions are processed efficiently and fairly.

2. Establish a clear and automated case management system: A case management system is absent in the process. Without one, arbitrary reallocations and delays have arisen. Such an automated system would be more transparent to all stages of an application or opposition and thus reduce discretion and make for better accountability.

3. Regular audits and performance reviews: Regimen audit to probe the performance of both examiners and leadership should reveal bottlenecks and areas of concern before they become systemic.

4. Strengthen oversight and accountability mechanisms: Repeated court intervention speaks to the fact that there is no internal mechanism that can handle grievance redressal. Strengthening oversight through an independent committee or a stakeholder board can help rebuild trust.

5. IT infrastructure upgradation: IT systems that the CGPDTM uses is an irritation source that never ends. It should be the first priority of the newly-appointed head of the IT division to modernise the IT systems to handle huge volumes of data and ensure that technical failures occur with minimal frequency.

Looking ahead: The future of the CGPDTM

Recent judgments like Tiger Foods are a reflection of the increasingly critical attitude of the courts toward the inefficiencies of CGPDTM. Though judicial remedies have been providing beneficial respite in specific cases, they can neither be nor should they be a substitute for full-fledged reform. Corrective measures, therefore, need to begin at the level of the core issues - commencing with transparency in decision-making and commitment towards efficient and fair application processing.

The CGPDTM is now at a crossroads. Repeated delays, badly worded orders and administrative lapses have created an atmosphere of distrust among the stakeholders. The solution lies in wholesome change. For that purpose, the office needs to move beyond short-term solutions and find time-tested reforms so that it can be aligned with the growing demands of an innovation and business landscape of India. Only then would the CGPDTM be able to stay true to its word of promoting and protecting intellectual property rights in India.

Yashvardhan Rana is the Founder and Principal Attorney at YVR Law Offices.