Trademark Rewind: Applications Processed by QCI-hired Officers to be Revisited

The Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM) is revisiting trademark applications processed by officers hired through the Quality Council of India (QCI). This decision follows legal challenges to the validity of decisions made by these outsourced officers.

Background

• October 2022: In response to a manpower shortage impacting patent and trademark approvals, CGPDTM decided to outsource 790 employees (210 for patents and 580 for trademarks) through QCI from October 10, 2022.
• April 2024: In its legal opinion, the Department of Legal Affairs stated that the decisions of outsourced employees, appointed through agencies and not by the Central Government, in any statutory proceeding can be challenged as null and void as these orders are passed by ‘legally incompetent persons’. Concerns over potential irregularities prompted DPIIT to seek this legal opinion.
• June 2024: As per Additional Solicitor General, Aishwarya Bhati, the decisions of such outsourced employees suffered from fundamental flaws and could be challenged as null and void in any statutory proceeding. In Bhati’s opinion, the General Financial Rules, 2017 (GFR) had to be adhered to for hiring outsourced employees from any agency, however, delegation of quasi-judicial functions was not envisaged under these rules.
• July 2024: DPIIT directed the termination of the MoU with QCI and the formation of a committee to revalidate decisions taken by the contract hearing officers.
• August 2024: In a recent judgment, the Calcutta High Court reiterated that Section 3(2) of the Trade Marks Act, 1999, empowered the delegation of administrative powers and not quasi-judicial powers considering that the latter is to be performed independently and is not subject to the superintendence and direction of any other person, including the Registrar.[1] With this, the Court held that the Associate Manager of Trade Marks, who was engaged on a contract basis, lacked the authority to issue quasi-judicial orders.

Revalidating Trademark Applications

Following DPIIT’s directive, the Office of the CGPDTM is revalidating trademark applications processed by QCI-hired officers. The review will cover applications at various stages, including examination, PARM, show cause hearings, oppositions, and post-registration.

The Level-1 Officer will be revisiting applications in accordance with the Act and Rules, validating the application, or recommending appropriate actions to the Level-2 Officer. The Level-2 Officer will be deciding whether to initiate the process per Level-1 Officer’s recommendations or validate the decision.

Additionally, the office order addresses concerns regarding monitoring of the work output, suitable arrangements in the TM module for processing of applications, etc.

[1] Visa International Ltd. v. Visa International Service Association & Anr. (IPDTMA No.82 of 2023); click here to download the judgment.