含羞草社区 new brand of high-speed justice has caught some IP litigants off guard. Pravin Anand offers a few survival tips
Delhi High Court is widely regarded as the most IP-savvy court in India. As a result, it attracts almost 70% of the country’s IP litigation. But until relatively recently, the typical duration of a case was three to five years, sometimes longer. In the country’s other courts, the situation was often worse.
However, a time revolution brought on by a combination of factors has swept away many of the delays. Delhi High Court is now granting orders for the disposal of lawsuits in just a few months.
The impetus for change came in part from the Supreme Court. While hearing a patent infringement suit (Bajaj v TVS), the Supreme Court stated: “In our opinion, in matters relating to trademarks, copyright and patents … the final judgment should be given normally within four months from the date of the filing of the suit.”
Since then, Delhi High Court has passed four-month orders on no less than 20 occasions. Even if the entire trial takes an additional four to six months, it still means that lawsuits are being disposed of in less than a year.
The dramatic improvement was made possible by the following developments:
- Amendments to the Code of Civil Procedure in July 2002 rationalized court procedures and abolished wasteful processes.
- Improved docket management by judges, and a concerted drive to reduce the delays.
- The conversion of Delhi High Court to an “e-court”. This involved scanning millions of documents so that they are readily available to judges at the click of a button.
- The recording of evidence before a local commissioner, such as a retired judge, in an executive centre so that the clutter of a formal court is avoided.
- Supreme Court orders that created the expectation that IP lawsuits would be disposed of within such a time frame.
Keeping pace with justice
Operating in a world of high-speed litigation is not always straightforward. Plaintiffs who miss the deadline for filing their documents may find that they can’t file them at all. The law has been modified to facilitate the filing of documents right up to the stage of cross-examination, but at every step, anyone who misses a deadline is required to provide a detailed explanation and may face a hefty fine.
Another problem is that the number of witnesses is limited, and if a particular witness is not present for cross-examination on a scheduled date, their evidence might be disregarded.
This may appear rather harsh, but it is simply a consequence of high-speed justice. Plaintiffs are expected to be completely prepared with their pleadings, documents and witnesses at the beginning of the trial so that they do not falter during the ensuing rollercoaster ride.
Survival tips
Plaintiffs are advised to have all of their original documents to hand at the start of a case. Foreign companies should pay particular care because Indian courts place a greater emphasis on original documentation than courts in many other countries.
Under the Indian Evidence Act, 1872, original documents are deemed to be primary evidence. Fighting a case on secondary evidence alone is laborious and risky. In order to meet the challenge of producing originals, the best approach is to limit the number of documents presented to those that are strictly necessary to prove the case.
One strategy is to file them in the first legal proceeding and take certified copies from the court to present in subsequent lawsuits. Another strategy is to file photocopies and produce originals at the time of exhibit marking by a witness.
Interim injunctions
In patent infringement actions, filing an application for the grant of an interim injunction makes very little sense. Interim injunctions are rarely granted and tend to delay the fast movement of the lawsuit. The one exception is when a product has yet to be launched. In such cases it is often possible to get a status quo order on evidence that another party is on the verge of launching an infringing product. This has been achieved in several patent matters recently.
In trademark matters, problems may arise when defendants file invalidity proceedings before the Intellectual Property Appellate Board, which alone has the jurisdiction to hear rectifications. If an infringement suit has been fast-tracked, the invalidity proceedings are likely to move at a slower pace and may affect the disposal of the infringement action before the high court.
The suit, in all probabilities, may even be stayed under the provisions of secton 124 of the Trade Marks Act. Thus, complex jurisdictional issues often arise when there are multiple proceedings pending before different courts and forums. The priorities afforded to different forums in terms of when they should stay their hands in preference to others, is still a grey area.
Consequently the interim injunction still plays an exceptionally important role in trademark matters.
Key issues for litigants
A number of other issues should be borne in mind by those undertaking IP litigation in India. They include: the authority to sign the pleadings and institute legal proceedings; the territorial jurisdiction; the likelihood of delays and the possible suppression of material particulars by an opposing party. In addition, surveys have shown that technical defences have increased in importance over the years as courts have become better informed about IP issues.
With good preparation before launching legal proceedings, IP owners can now take advantage of the benefits of high-speed justice. Delhi High Court is a model for this and it is hoped that the country’s other courts will adopt similar standards of excellence.
Pravin Anand is the managing partner of Anand and Anand. He can be contacted at pravin@anandandanand.com or by telephone on +91 11 2435 1749.
