The technical members, in their position at the board, can function without a chairperson. The Section 85 of TM Act inter alia stipulates the qualifications for the post of chairperson or vice-chairperson. The relevant provisions of this section reveal that there is no bar for a technical member to be appointed as a regular chairperson, provided she or he has for “at least two years, held the office of a Vice-Chairperson. This assertion was made by the Supreme Court of India presided by J. S. RAVINDRA BHAT, J. HEMANT GUPTA and J. L. NAGESWARA RAO in the case of THE INTERNATIONAL ASSOCIATION FOR PROTECTION OF INTELLECTUAL PROPERTY (INDIA GROUP) vs. UNION OF INDIA [W.P.(C) NO.1431/2019].
In the present case, the applicant (the International Association for Protection of Intellectual Property) had preferred a Writ Petition, which was disposed of by this court along with a batch of other petitions and applications on 27th November 2020, in the judgment reported as Madras Bar Association v Union of India. The applicant seeked extension of the term of the incumbent Chairperson of the board stating that his appointment was made under section 89A of the Trademarks Act, 1999. The applicant urged that Section 184 of the Finance Act, 2017, prescribed the term of office and the conditions of service of Chairperson and members of various tribunals including that of the Board. Section 161 of the Finance Act inserted Section 89A to the TM Act which stipulates that the term of office of appointments to the board after the date of commencement of the Finance Act would be governed by the provisions of the Section 184 of the said Finance Act. The outer limit prescribing the age limit of the chairperson of the board is 70 years, in terms of Section 184. The applicant contend that he was that the Finance Act, 2017 had inserted Section 89A of the TM Act, which states that the tenure of office and maximum age of retirement would be governed by the terms of the said Finance Act and, consequently, the pre-existing tenure and age limits did not apply. The last contention which this court had to deal with was the applicant’s position that the Board cannot function without a judicial member, and that at present, only the incumbent Chairperson is a judicial member, and that if his tenure is not extended by a judicial order, the Board would be unable to function.
The honorable court observed, “The submissions of the applicant, in the opinion of this court, are meritless. Section 84 (2) of the TM Act no doubt states that a bench of the board shall consist of a judicial and a technical member. However, it is “subject to other provisions” of the TM Act. Section 84(3) commences with a non obstante clause and stipulates, by Section 84(3)(a) that a chairperson 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.’ Thus, in the absence of any member, the chairperson may, if the occasions so arises, act as technical or judicial member. Section 87 enables a vice-chairperson, or as the case may be the senior-most member of the board to act as chairperson in the event of a vacancy to that position, or in the event of the incumbent’s inability to function in the post. Furthermore, significantly, Section 85 inter alia stipulates the qualifications for the post of chairperson or vice-chairperson. The relevant provisions of this section reveal that there is no bar for a technical member to be appointed as a regular chairperson, provided she or he has for “at least two years, held the office of a Vice-Chairperson”.
The court further observed, “In fact, the incumbent five technical members all hold legal qualifications. Four of these incumbent members were practicing advocates in specialized fields of intellectual property and one technical member had experience in the Patent Office. These members had practical legal experience of ten to fifteen years. The fact that they were appointed as technical members cannot obfuscate the fact that they are legally trained and qualified. Therefore, the argument that the technical members, in their position at the board as of now, cannot function without a chairperson, is unsustainable.”