Intellectual
Property thrives on the element of uniqueness and exclusivity. More often in
intellectual property (“IP”) disputes, the Plaintiff seeks injunction from the
Court against the alleged act of infringement by the Defendant.
The
Court, while assessing whether a prima facie case has been made out or not in
favour of the Plaintiff, exercises discretion.
Other
than establishing that there is a bona fide contention between the parties and/or
a serious question is to be tried between them, the condition that needs to be
satisfied for grant of a temporary injunction, is that the balance of
convenience must be in favour of the Plaintiff.
The
Court may grant following forms of injunction:
1. Anton
Pillar Order;
2. Mareva
Injunction; and
3. Norwich
Pharmacal Orders
Anton
Pillar Order: Meaning
Anton
Pillar orders are a form of legal mechanism that helps preserve evidence. The
Plaintiff approaches the Court in an urgency and seeks raid of the premises of
the alleged wrongdoer without notice, in order to find and preserve evidence
that it believes will otherwise be destroyed.
A
Court Commissioner can be appointed by this exparte order to visit the Defendant’s
premises and search and seize the infringing goods.
Since
the grant of an Anton Pillar Order, is exparte, it makes the opposite party or
the alleged infringer devoid of opportunity to be heard, it should be granted
in exceptional circumstances.
Relevant
Provisions under Law and Guideline of the Court: pull in the reins of a berserk
horse
The
remedies available for protection of IP can be broadly classified into civil
and criminal remedies. Anton Pillar Orders lay under the head of civil
remedies. Order 39 of the Civil Procedure Code, 1908, (“CPC”) authorizes the Court
to issueorder of temporary injunction, wherein it may pass a direction in the
line of an Anton Pillar Order. Further, in order to conduct search and
authorize an officer to seize the infringing goods and later file a report with
regards to the search so conducted, the Court may appoint a Commissioner under
Order 26 of the CPC.
Not
only CPC, even the statutes like the Trade Marks Act, 1999, The Geographical
Indications of Goods (Registration and Protection) Act, 1999 specifically
provide for grant Anton Pillar Order as a remedy.
However,
even though, there have not been a lot of caselaws whichdiscuss the aspects of
Anton Pillar Order, one of the earliest cases that dealt with its concept was National
Garments vs National Apparels, (1990) PTC 98. The case pertained
to grant of interlocutory injunction for restraining the Defendant from doing
business under the trade name under dispute. The court observed that in extremely
urgent cases an exparte injunction may be obtained before full hearing of the
motion or an Anton Pillar Order, for inspection of the Defendant’s premises without
prior warning and discovery of his records, may be obtained. The Court also
observed that an Anton Pillar Order is similar to the exparte interlocutory
order to take an inventory of the articles etc. passed in an ordinary suit.
Taking
into note the aberrant nature of these Orders, Justice Ashok Kumar Ganguly, in Bucyrus
Europe Ltd vs Vulcan Industries Engineering Co Pvt Ltd, 2005
(30) PTC 279, observed that an Anton Pillar order can be passed in the
following circumstances:
a. Where
the plaintiff has an extremely strong prima facie case;
b. Where
the actual or potential damage to the plaintiff is very serious;
c. Where
it was clear that the defendant possessed vital evidence, and
d. There
was a real possibility that the defendant might destroy or dispose of such
material so as to defeat the ends of justice
He
observed that the purpose of an Anton Pillar order is preservation of
evidences. The Court also mentioned about the safeguards that have to be
provided while granting Anton Pillar order, like an undertaking by the Plaintiff
to compensate the Defendant for the losses he wrongly suffered.
While
granting the Anton Pillar Order, the balance of convenience has to be in favour
of the Plaintiff, which means that mischief or inconvenience which is likely to
be caused to the Plaintiff if the injunction is not granted versus the
inconvenience that is likely to cause to the other party if such an injunction
is granted, has to be compared. The Plaintiff should suffer
an irreparable injury if no such injunction is granted. The irreparable
injury has to be of such material form, which cannot be otherwise adequately
remedied or quantified in form of claim of damages.
Conclusion
Anton Pillar orders are like “Venom” the dark reflection of Spider-Man, having tremendous power to cause harm. Since it has the potential to be misused to disadvantage of the Defendants, it should not only be allowed cautiously and with utmost care but also be seldom put to use.
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