79. [Textile goods.] Omitted by s. 7, ibid. (w.e.f. 8-7-2013).
80. [Restriction on registration of textile goods.] Omitted by s. 7, ibid. (w.e.f. 8-7-2013).
81. [Stamping of piece goods, cotton yarn and thread.] Omitted by s. 7, ibid. (w.e.f. 8-7-2013).
82. [Determination of character of textile goods by sampling.] Omitted by s. 7, ibid. (w.e.f. 8-7-2013).
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 1[and under the Copyright Act, 1957 (47 of 1957)].
1. Ins. by Act 7 of 2017, s. 161 (w.e.f. 26-5-2017).
84. Composition of Appellate Board.—
(1) The Appellate Board shall consist of a 2[Chairperson], 3[Vice-Chairperson] 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 2[Chairperson]—
(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 3[Vice-Chairperson], 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 2[Chairperson] 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 2[Chairperson] 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.
2. Subs. by s. 161, ibid., for ―Chairman‖ (w.e.f. 26-5-2017). 3. Subs. by s. 161, ibid., for ―Vice-Chairman‖ (w.e.f. 26-5-2017).
85. Qualifications for appointment as 2[Chairperson], 3[Vice-Chairperson], or other Members.—
(1) A person shall not be qualified for appointment as the 2[Chairperson] 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 3[Vice-Chairperson].
(2) A person shall not be qualified for appointment as the 3[Vice-Chairperson], 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 (43 of 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 1[Chairperson], 2[Vice-Chairperson] and every other Member shall be appointed by the President of India.
(6) No appointment of a person as the 1[Chairperson] shall be made except after consultation with the Chief Justice of India.
2. Subs. by s. 161, ibid., for ―Chairman‖ (w.e.f. 26-5-2017). 3. Subs. by s. 161, ibid., for ―Vice-Chairman‖ (w.e.f. 26-5-2017).
86. Term of office of 1[Chairperson], 2[Vice-Chairperson] and other Members.—
The 1[Chairperson],2[Vice-Chairperson] 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 1[Chairperson] and 2[Vice-Chairperson, the age of sixty-five years; and (b) in the case of a Member, the age of sixty-two years, whichever is earlier.
1. Subs. by Act 7 of 2017, s. 161, for ―Chairman‖ (w.e.f. 26-5-2017). 2. Subs. by s. 161, ibid., for ―Vice-Chairman‖ (w.e.f. 26-5-2017).
87. 2[Vice-Chairperson] or senior-most Member to act as 1[Chairperson] or discharge his functions in certain circumstances.—
(1) In the event of or any vacancy in the office of the 1[Chairperson] by reasons of his death, resignation or otherwise, the 2[Vice-Chairperson] and in his absence the senior-most Member shall act as 1[Chairperson] until the date on which a new 1[Chairperson], appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.
(2) When the 1[Chairperson] is unable to discharge his functions owing to his absence, illness or any other cause, the 2[Vice-Chairperson] and in his absence the senior-most Member shall discharge the functions of the 1[Chairperson] until the date on which the 1[Chairperson] resumes his duty.
1. Subs. by Act 7 of 2017, s. 161, for ―Chairman‖ (w.e.f. 26-5-2017). 2. Subs. by s. 161, ibid., for ―Vice-Chairman‖ (w.e.f. 26-5-2017).
88. Salaries, allowances and other terms and conditions of service of 1[Chairperson], Vice 1[Chairperson] 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 1[Chairperson], 2[Vice-Chairperson] 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 1[Chairperson], 2[Vice-Chairperson] 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 1[Chairperson], 2[Vice-Chairperson] or other Member.
1. Subs. by Act 7 of 2017, s. 161, for ―Chairman‖ (w.e.f. 26-5-2017). 2. Subs. by s. 161, ibid., for ―Vice-Chairman‖ (w.e.f. 26-5-2017).
89. Resignation and removal.—
(1) The [Chairperson], [Vice-Chairperson] or any other Member may, by notice in writing under his hand addressed to the President of India, resign his office:
Provided that the 1[Chairperson], 2[Vice-Chairperson] 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 1[Chairperson], 2[Vice-Chairperson] 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 1[Chairperson], 2[Vice Chairperson] 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 1[Chairperson],2[Vice-Chairperson] or other Member referred to in sub-section (2).
1. Subs. by Act 7 of 2017, s. 161, for ―Chairman‖ (w.e.f. 26-5-2017). 2. Subs. by s. 161, ibid., for ―Vice-Chairman‖ (w.e.f. 26-5-2017).
3[89A. Qualifications, terms and conditions of service of Chairperson, Vice-Chairperson and member.
Notwithstanding anything in this Act, the qualifications, appointment, term of office, salaries and allowances, resignations, removal and other terms and conditions of service of the Chairperson, Vice Chairperson and other Members of the Appellate Board appointed after the commencement of Part XIV of chapter VI of the Finance Act 2017 (7 of 2017), shall be governed by the provisions of section 184 of that Act:
Provided that the Chairperson, Vice-Chairperson and other Members appointed before the commencement of Part XIV of Chapter VI of the Finance Act, 2017 (7 of 2017), shall continue to be governed by the provisions of this Act, and the rules made thereunder as if the provisions of section 184 of the Finance Act, 2017 (7 of 2017), had not come into force.]
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 1[Chairperson] 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 (5 of 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.
(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 (5 of 1908), while trying a suit in respect of the following matters, namely:—
(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 (45 of 1860), 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 (2 of 1974).
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 1[Chairperson], 2[Vice-Chairperson] or other Members shall not appear before the Appellate Board or the Registrar.
1. Subs. by Act 7 of 2017, s. 161, for ―Chairman‖ (w.e.f. 26-5-2017). 2. Subs. by s. 161, ibid., for ―Vice-Chairman‖ (w.e.f. 26-5-2017).
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 1[Chairperson] 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 1[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 judgment 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.
