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Published : December 29, 2011 | Author : mainan1
Category : Intellectual Property | Total Views : 7417 | Rating :

  
mainan1
Mainan Ray,LL.M ,NATIONAL LAW UNIVERSITY, JODHPUR
 

A skimming on Anton Piller in protecting the IPR

Strong evidence is highly necessary to substantiate one’s claim and to get relief or remedy for any wrong committed by the defendants to the plaintiff. But, in absence of proper evidence it is really unpalatable to substantiate any claim by the victim. This loopholes of law indulges the wrong doer in doing the round infringement of intellectual property rights of right holder flouting at his corroborating evidence by destroying or diminishing. However, any infringement of intellectual property rights attract the legal initiation and resorts to traditional remedies including mere injunction, cost, damages in civil nature and search and seizer and proceeding there on to .But in these days the non-traditional and pecuniary type of remedies like Anton Piller has got the popularity with the motion of granting recognition in Anton Piller KG vscase in UK. After its recognition, the ambience of the remedy pervades across many countries like Singapore, Thailand,New Zealand,Australia. Even USA also keeps analogy to Anton Piller order. And obviously, India though has not feet into the same shoe but almost on way to do it. In this presentation ,I wish to go on gradually to make an inquisitive glimpse of this “Nuclear Power “ in the plaintiff's arsenal .The application of Anton Piller in India is not so popular and famous as much as in other countries. Here we will discuss on it in Uk and Indian perspective.

Anton Piller Order in UK------An overview
The first use of such order was made in the case of EMI Limited v Pandit UK. However it was bombarded with popularity only after the case of

Anton Pillar KG vs. Manufacturing process
In this case, the plaintiff, the German manufacturers of sophisticated electrical components, after discovering that the defendants, their Uk agents were passing the drawings and other confidential information to other German companies, sought an ex-parte order for infringing their copyrights and misusing confidential information and got the order ultimately.

Anton Piller order is a very potent weapon in the arsenal of plaintiff and is a form of discovery preservation granted on ex-parte application. It can comprise of injunction to restrain infringement, permission to plaintiff’s solicitor to enter into defendant’s premises to inspect documents and removes originals or permission to remove alleged wrongful goods and if necessary even destroying the offending goods for the purpose of destroying defendant’s business and reputation obtained by means of illegal way and to put an injunction on the defendants not to disclose the content of the injunction not to third parties too.

Substantive requirements for Anton Piller Order……..
In Anton Pillar KG vs. Manufacturing process, Lord Ormond & Lord Denning enumerated four prerequisites for making the application of such order could be concluded as follows:

a. A strong prima facie case against the defendant easily is available which would be clear and compelling evidence against defendant for enforcing such an order.

b. That the potential or actual damage done to the plaintiff by the defendant is serious in nature and irreversible

c. Clear evidence that the defendant has necessary and relevant documents or articles or goods or items in his possession and scope of real possibility and fear that the defendant might destroy such crucial concerns before any inter parties application made in respect of the same.

d. Should an order be made but, it would do no real harm to defendant or his case. No effect of such an order would cause any harm to the defendant during the course of such an order and pertaining to exercise such an order favouring the plaintiff’s claim

However, Lord Denning himself was not ready to give it too much weightage.

Scope of Granting of Anton Piller…..
Ø The most consideration is the bonafide interest of the plaintiff and rendering justice
Ø Defendant’s ignorance about plaintiff's rights is not acceptable
Ø Even if in case of non-disclosure of Defendant’s hives

Rendering the justice is the key thinking in the judge’s mind to synthesize this grant in favour of the plaintiff. The wider connotation of the principle of “Ubijus Ibi remedium” {where there is the right there is the remedy} is exercised by the court in determining the justice. For this, even defendant's ignorance about the plaintiff's right is not a ground for refusing theorder. However, Anton Piller order may be exercised in another context as well the order may be granted by the disposal of the court for the discovery of names and address of the defendant’s suppliers and customers by whose assistance the defendant makes the infringement of the right holder’s IPR and making the illegal means of business at the cost of other’s effort and Intellectual property.

Application of Anton Piller Order In Indian legal system

India can boast a sound legal regime to deal with the intellectual property protection .Plenty of the statues , laws considerably show the inclination of India in protecting the IPR regime .

The various Indian Acts are:
v Copyright Act,1957
v Trade Marks Act,1999
v Patents Act,1970(As amended by Patents [Amendment]Act,2005}
v Design Act, 2000
v The Geographical Indications of Goods(Registration and Protection Act),1999
v The semiconductor Integrated Circuits Layout-Design Act,2000
v Protection of Plant Varieties and Farmer’s Rights Act,2001

These Acts provide for sound mechanism to prevent infringement of IPR and the remedies available are in civil and criminal nature. The orders are made in line of Anton Piller are in civil nature. In India the court is authorised by the following provision and the acts to pass such an order

· Order 39 of the CPC,1908
• Trademark Act, 1999
• The Geographical Indications of Goods(Registration & Protection) Act,1999

India is still in nascent stage in regard to the stirred topic .Only the aforementionedlaws and provision is analogous to the bottom line principle of Anton Piller. However, there have not been much case laws debating over the aspects of Anton piller.But India can boast of sound legal regime to deal with the intellectual Property Protection.

Indian cases……
National Garmentsvs. National Apparels

This is not a case of Anton Piller but sought for interlocutory order against defendant. In this case the defendant were doping most like the same business what the plaintiff started to do so and used the same trade name most commonly same to the plaintiff's business and the court cited the principle of Anton Piller Kg case and enunciated that in extreme urgent case an interlocutory order may be passed full hearing for inspecting the defendant’s premises

Bucyrus Europe ltd vs. Vulcan Industries Engineering Co Pvt Ltd
In this case the appellant was granted ex-parte order of injunction restraining the defendant from manufacturing, selling stocking for sale offer for sale, marketing, advertising and distribution in any other manner produced from any of the drawings, designs and shape of the product originally belong to plaintiff

TRIPS provision…..
Article 47 of the TRIPS Agreement provides that:

‘Members may provide that judicial authorities shall have the authority to order the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the infringing goods or services and of their channels of distribution’.

Two observations may be made here:
(1) The word ‘may’ in Article 47 indicates a choice rather than an obligation on the part of Member States for its implementation.
(2) The right of information enunciated in Article 47,if applies in a criminal case, may infringe the rule of privilege against self-incrimination.

In the House of Lords case of Rank Film Distributors V. Video Information Centrethe defendants to an action for breach of copyright successfully sought the discharge of an Anton Piller Order which ordered them to disclose the names and addresses of their suppliers and customers for illicit copies of the Plaintiffs’ films, on the ground that this would tend to expose them to proceedings for a criminal offence. The House of Lords held that the privilege against self-incrimination is capable of being invoked in such a case. Rank Film was a 1981 House of Lords decision.I n the same year, the Parliament in England enacted the Supreme Court Act 1981 and in section 72 the Act reverse the effect of Rank Film and restores the full effectiveness of Anton Piller Order by taking away the Privilege against self-incrimination in proceedings for infringement of intellectual property rights.

Art.43(1) speaks for produce of substance evidence by any opposing party for determining the justice .Though this provision has not any direct link with Anton Piller order but this provision needs to be read carefully and extinsively for bringing off the true sense of Anton Piller order’s application

Article 45(1) than the negative element under Article 45(2).

Article 45(2) may be of a higher standard than Article 45(1), but the word ‘may’ in Article 45(2) denotes a choice for the Member States rather than an obligation.

Article 45(2) also demands the payment by the infringer of expenses including appropriate attorney’s fees. In exercising the Anton piller order the role of the plaintiff’s solicitor is most important and to avail of the remedy thus engage of solicitor is highly desirable.

If Anton Piller order is to be granted the basic requirement which are required all most mentioned in TRIPS provisions not directly connecting to today’s non-traditional remedy But the essence is hold up by the TRIPS.

The provisions of TRIPs Agreement, in particular Article 50, equip the judicial authority with the power to order prompt and effective provisional measures to:
(a) Prevent an infringement of any IPRs from occurring and entering into the channels of commerce. (Preventive Injunction)
(b) Preserve relevant evidence in regard to the alleged infringement. (Anton Piller Order is the underlying thinking here in)

Ab(use) of the Order…
* It too has the potential to be misused to detriment to the plaintiff
* Causes damaging and irreversible consequences
* Without allowing defendant a chance of hearing

We have got that the antonpiller order has tremendous power backed by the law. And the Well goes adage is “Power corrupts and absolute power corruptsabsolutely”-It too has potential to be misused by the plaintiff. It involves the court in the hypocrisy of pretending that the owner has consented to it without hearing a single word of the premises owner or the defendant. The biasness of plaintiff’s solicitors to the plaintiff and dishonesty to the fair principle as to the proceeding imparts the essence of the principle of such order.

Safeguards…
§ Application has to be lodged with the judge at least two hours before the hearing
§ The plaintiff has to disclose all particulars and has to mention neutral solicitor
§ The plaintiff would have to give the under taking to pay damages
§ Evidence will be used only in the proceedings

These principle were laid down by the court in Columbia Picture Indutries Vs Robinson ,also in Universal Thermosensors Ltd V hibben (all the principles laid down in this context to be read out in consonance with the UK’s rule though the same corroborated by the Indian Judiciary in subsequent case

Conclusion
In early days India nattered about Anton Piller but with the motion of time accompanying by intricacy in protecting the rights of the original intellectual property rights holder, it gets an rhythm to protect the rights of the victim .Due to its enormous power if not used carefully and prudently, it can be abused to a large extent. In many countries like England, Wales, Western Australia termed this weapon as “search order” .Besides, the countries like Canada, New Zealand, Ireland, all accept it highly. In exercising such power the Courts need to be very cautious of the fact of the misuse of it and have to work in tandem with the legislator to provide certain guidelines for its proper use. More over for its proper application, there is needed to educate the people about pro s and cons of the order for proper functioning of such unique mechanism for protection of IPR.

References
v Law Relating to Intelectual Property: By- Dr.B.L.WADEHRA
v Cornish And Llweelyn Intellectual Property Patents,copyright,trade Marks And Allied Rights: By- W Cornish and D Llewelyn
v Black’s Law Dictionary

Journals
Journal of Intellectual Property Rights Vol.11, November, 2006

Websites
# www.legalservicesindia.com
# www.hg.org/article.asp?id=7567

# [1975] 1 All ER 418 in 1975
# (1976) 1All ER (418)
# 1990, PTC , 1998
# {1981}2 All E.R.76

Authors contact info - articles The  author can be reached at: mainan1@legalserviceindia.com




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