Anton Pillar Order: Witch Hunt in the World of IP

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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