23 July 2013

IPAB has power to grant interim stay

A Larger Bench of the Intellectual Property Appellate Board (IPAB) has held that it has power to grant interim stay. It observed that if it were to hold that IPAB has no power to entertain any interim application or to pass orders thereon, it would result in collapse of the purpose for which the Board was created. It held that IPAB has the power but shall not exercise it arbitrarily.

Further, for passing interim orders, i.e. orders in the nature of stay or injunction, the Board laid down five guidelines.   According to these guidelines, the Board will first explore the possibility of decision in the main matter expeditiously;  no interim orders shall be granted without hearing the other side as provided for in Section 95 (2) of the Trade Marks Act ; if the trademark or patent has been in force for a considerable period that will be a condition against grant of interim order; factors like prima facie case, balance of convenience, irreparable injury and hardship shall be kept in mind;  and that the order would preferably be so worded as to bind only the parties to the proceedings and no one else.

While holding as above the Board noted Supreme Court’s observation that the IPAB is a judicial tribunal and hence what applies to quasi-judicial tribunals or executive tribunals may not apply to the IPAB. It was further observed that the possible difficulties that may ensue cannot be the reason for holding that there is no power to grant interim order. [Shreedhar Milk Foods Pvt. Ltd. v. Vikas Tyagi – IPAB Order No. 148 of 2013, dated 8-7-2013]


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