Over 44,000 trade mark files have gone missing in India.
Justice Muralidhar of the Delhi High Court on April 7 asked the government to reform the Trade Mark Office. This was after an investigation revealed that the office had lost 44,404 trade mark registrations without even realizing.
According to Managing Trade Marks:
On the same day P H Kurian, India’s controller general of patents, designs and trade marks, published a notice admitting that in the trade mark database the status of pending and registered trade marks has appeared wrongly “in quite a large number of cases”.
“This is the most ridiculous state of affairs,” said Pravin Anand, managing partner of Anand & Anand. “They need to completely professionalise the system”.
The Delhi High Court filed the order over the missing trade marks in response to a writ petition filed by Haldiram, one of India’s largest sweets and snacks manufacturers.
Haldiram is involved in a long-running trade mark dispute and had discovered that three application files, as well as a series of decided and pending opposition proceedings were all missing.
In December last year the Court asked the Department of Industrial Property and Promotion (DIPP), which oversees India’s patent and trade mark offices, to investigate.
The DIPP found that at least 44,404 files went missing when records were decentralised from the central Mumbai office to the branch offices in Delhi, Chennai, Kolkata and Ahmedabad, although figures later in the judges order suggest the number might be as high as 60,052.
And this doesn’t even include missing opposition and revocation cases, which the DIPP is now investigating.
Amarjit Singh, a partner of Amarjit & Associates, which is advising Haldiram in this dispute, is not convinced by the Office’s explanation that the marks were lost in transit.
He explained that oppositions and revocations were always dealt with locally, and so could not have been lost during decentralisation in 2006.
“These files have never been to Bombay. They were originally in Delhi and they should have remained in Delhi,” he said.
More worrying is the prospect that only specific opposition and revocation files have disappeared, as that might suggest that they were removed at the request of interested parties, particularly in the light of recent allegations of corruption in the country’s trade mark offices.
In the Chennai Trade Mark Office, two deputy registrars have been arrested by the Central Bureau of Investigation on suspicion of corruption. The first arrest took place in May 2008 and the second in March this year.
At least two other officials in Chennai are said to have been arrested on suspicion of corruption this year.
In October last year the Trade Mark Office admitted that, of 56,429 marks that were removed for non-payment of fees in the previous six months, some may have been categorised incorrectly.
It gave brand owners until November 30 to appeal decisions.
There was also a fire in the Mumbai office in 2009 in which some documents were destroyed. It is not known how many.
Anuradha Salhotra of Lall Lahiri & Salhotra in Delhi said that the problems of the Trade Mark Office date back to 1983, when the then Registrar tried to computerise the records, met with resistance from staff and removed some records from the office to computerise off-site.
“From 1983 to 2011 there has been total chaos,” said Salhotra, claiming that each subsequent controller “has tried to do their own thing”. This has meant that there has never been an authoritative central record and “this has created opportunities for corruption”.
The revelations cast doubt on India’s ability to accede to the Madrid Protocol, even though it was expected to join in 2011.
Anand advised brand owners worried about the latest announcement of missing marks to focus on the key registrations. “They must get the attorneys to confirm that their crown jewels are intact.”
If registrations are missing brand owners should provide all relevant documents to help in their reconstruction.
This should soon be possible as the order asks the trade mark offices to publish details of all missing registrations and the procedure for restoring registrations by April 30th.
The problem is not restricted to trade marks, with practitioners saying that important patent files have also been lost.