In a recent judgment given on 3rd October, 2012, Delhi high court ruled against the decision of IPAB’s appointment for the post of technical member for Trademarks. In the judgment given by Justice Suresh Kait, high court ordered the Department of Industrial Policy & Promotion (DIPP) that the selection made by Search-cum-Selection Committee should be forwarded to the Appointment Committee of Cabinets (ACC). The Search-cum-Selection Committee interviewed 8 applicants for the position of technical member for Trademarks and out of them two were found suitable.

Case history:

• DIPP on behalf IPAB published an advertisement in Hindustan Times on 4th September, 2010 for two posts of technical member in Trademarks and one vacancy in Patents.
• Mr. S K Chaswal applied for the position of technical member of Trademarks and sent his bio-data.
• After initial scrutiny he was called for an interview in front of Search-cum-Selection Committee (respondent). For interview 8 applicants were called.
• After interview two applicants were selected. One was Mr. V. Ravi and other was Mr. S.K. Chaswal. Mr. S.K. Chaswal was placed 2nd on the basis of merit with the rider “subject to verification of experience in Trademarks”.
• Vice-Chairman of Intellectual Property and Appellate Board was assigned the job to verify experience of selected candidates.
• For Mr. S.K. Chaswal he opined as under:
• He is not in PANDA case.
• He has filed few Trademarks registration applications.
• Anoop Singh & Co. has not given any details about his experience with them.
• He has not filed any opposition case.
• With this Vice-Chairman of IPAB cancelled the candidature of Mr. S.K. Chaswal u/s 85 (4) (b) of Trademarks and Merchandise Act, 1999.
• Mr. S.K. Chaswal filed a suit against DIPP for this.
Relief sorted by Mr. S.K. Chaswal (Petitioner)
• Quashing of illegal opinion by Vice-Chairman.
• Quashing of the appointment Notice No. 7(1) 2010/IPR./PAB published in Times of India and other leading Newspapers dated 16th April, 2011 inviting fresh applications for the Post of Member Technical (Trade Mark) of IPAB.
• Directing the respondent to not select or to carry out appointment process for the selection of new candidate for the post of Member Technical (Trademarks) in Intellectual Property Appellate Board (IPAB).
• Directing the respondent to appoint the Petitioner to the Post of Member Technical (Trade Mark) IPAB with all consequential benefits.
• Directing the respondent to produce the records pertaining to the verification of work profile and their appointments.
• Directing the respondent to keep one post of Member Technical (Trade Mark) IPAB vacant till the disposal of this writ.

Court findings for Vice-Chairman’s findings

• The Ld. Vice Chairman has claimed in her report that the petitioners’ name does not appear in “Panda case”. The photocopies of the Panda case citation having petitioner name is marked as Annexure “P6” (Colly Pages no. 653 to 685 of the Petitioner Rejoinder).
• The Vice Chairman had deliberately omitted the submitted list of pending trademark cases out of her ambit of consideration pending before High Court and District court of Delhi. That many of published trademark applications in Trademark journals can be viewed and verified through internet after inserting “Sanjeev Kumar Chaswal” name in Google search engine.
• That Ms. Usha Vice Chairman did not verify the experience from Anoop Singh & Co. nor verified the list of cases pending or otherwise in High Court or District court submitted.
• That due to petitioner professional expertise the petitioner has been able to get almost all trademark applications of his clients registered except few in numbers not more that 5 opposition, which are still pending where opposition proceedings yet to take place. The petitioner’s old Trademark Agent number was 703 and Now New Trademark Agent number is 5682.

Other findings

• Any proposal to reject the re-commendations of Search-cum-Selection Committee requires the approval of ACC, which was absent in this case.

[The DOPT guidelines under Clause 5(V)] • Search-cum-Selection Committee’s requisitioning opinion report on the guise of verification from the Vice Chairman of IPAB and subsequent acceptance of report and rejection of the candidature of the petitioner by the respondent was illegal and beyond its powers and it was contrary to the directives of the DOPT. (The DOPT circular guidelines under Clause 5(I) to (X), OM No. 28113/2006-EO (SM II) dated 03.07.2006)
• The acting Vice Chairman had sent an undated opinion report and the same was not even on the official letter head.
• The petitioner had filed a compilation of the cases in which he has appeared, which shows that the petitioner has substantial experience in the Trademarks matters. Moreover, the petitioner apart from an enrolled Advocate and had practice of around more than 20 years.Court decision
• The Court asked DIPP to follow the procedure and forward petitioner’s name to ACC for the post of Technical Member.
• The Court stated that very same Selection Committee could not reject the name of a person that it had selected itself.
• The court also said that, “The case of the petitioner was not sent before the ACC.” So, court sent the case to ACC.
• Court also set aside the opinion of Vice-Chairman of IPAB and the subsequent actions. “Consequently, the opinions given by Ms. S. Usha, Vice Chairman, IPAB vide D.O.Dy. No.9369/2010 and subsequent action taken is set aside.”