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2021 (2) TMI 771 - SC - Indian LawsRight to be appointed / function as Chairperson Intellectual Property Appellate Board, till a new chairperson of Board is appointed - The applicant seeks extension of the term of the incumbent Chairperson of the board - Crossing the age limit of 65 years - Trademarks Act, 1999 - HELD THAT:- 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 occasion 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”. In fact, the incumbent five technical members all hold legal qualifications (three of them holding masters in law, including one who holds a post-doctoral qualification). Four of these incumbent members were practising advocates in specialized fields of intellectual property (trademarks, and copyright) and one technical member (patents) 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. Application dismissed.
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