Shadow over trademarks after HC says hiring contract staff in patent office illegal

Over the last two years, the Quality Council of India (QCI), an autonomous, non-profit body, has hired contractual employees for the Office of the Controller General of Patents, Designs, Trademarks and Geographical Indications. In a 2023 recruitment drive, the QCI invited applications for hiring 553 Patent and Designs Examiners.

According to the Annual Report for 2022-2023 published by the Office of the Controller General, a total of 2,31,977 trademarks were registered in 2022-23 while 2,61408 trademarks were registered in 2021-22. Given that the orders passed by ad hoc officers are not specially marked, it could give litigants a chance to seek clarity in an appeal.

The Calcutta High Court’s decision came in a case where a trademark opposition order that was issued by an ‘Associate Manager’ of Trade Marks was being challenged. These officers were hired as Hearing Officer in Trade Marks Registry, “purely on contract basis” up to the period of March 31, 2023. The HC noted that their appointment order mentioned that “no further continuation beyond the period of 31st March, 2023 can be claimed”.

In the Calcutta case, involving the registration of the mark ‘HANDLOOM GARDEN’, the order was passed by the Assistant Manager on September 16, 2023 while his service was till March 31.  “The respondents have not produced any order to establish that his engagement was extended beyond 31st May, 2023 and he was the Associate Manager on 16th September, 2023,” the HC said.

Generally, officers from Central or state governments, universities, statutory bodies are eligible for roles in the patent office.

“Outsourcing of this work is completely unacceptable. There have to be checks and balances. Good quality officers would significantly reduce litigation,” senior advocate Chander Lall, who specialises in intellectual property told The Indian Express.

While the Calcutta HC order is the first to hold that orders passed by temporary hires are unsustainable and lacking in jurisdiction, over the last year, the Delhi High Court has red-flagged several orders by the Patent and Trademark Office on the grounds that the orders are not “reasoned” or in one case, even “comprehensible.”

Referring to one order that stated the “attorney failed to establish the Identity of the mark in applied class,” Justice Hari Shankar of the Delhi HC, in May 2023, wrote in his verdict that “sentence is incomprehensible, it cannot obviously serve as a ground to reject the appellants application… I confess that I have no idea as to what this sentence is intended to convey.”