The Coarse Course of the Trademark Agent Examination and the Viva Voce marks

A long wait of 5 years finally dawns upon the announcement of the Indian trade marks agent exam 2015 reigniting ageing dreams of aspirants. Notwithstanding the sigh of relief the announcement brought with itself, the onset of the trademark agent 2015 procedure and preparations however are not left untouched by certain rhetorics and concerns.

To un-curtain this position on concerns, attention is sought towards the Rule 154 of Trademark Rules, titled ‘Procedure on application and qualifying requirements’ specifying:

The qualifying marks for the written examination and for interview shall be forty percent and sixty percent respectively and a candidate shall be declared to have passed the examination only if he obtained an aggregate of fifty percent of the total marks.

A prima facie reckoning of impropriety grips one, to see that no heed was paid to quite the parallel Patent Agent examination matter, where the Honorable High Court of Delhi in Ms. Anvita Singh vs Union of India, pertinantly and specifically negated the rule requiring even as much as 50% minimum marks attributed to VIva Voce.

To provide a brief background to the case, Ms. Anvita while managing to get 61 and 72 marks in paper I and II respectively at patent agent exam, 2011, was failed by IPO as she could manage only 40 marks in the ever so subjective viva voce. She subsequently challenged the rule requiring a minimum of 50% in the viva voce, which ultimately led to striking down the requirement of minimum 50% marks in viva and implementation of Patent (Amendment) Rules, 2012. Patent (Amendment) Rules, 2012 thereafter not only reduced the weightage of total marks to 50 marks from 100 marks, but removed the requirement of minimum marks at viva completely as was followed in the Patent agent exam 2013. Plausible arguments asserting minimum 50% for viva voce is too high a prescription and gives unquestionable arbitrary power to the interview board to downslide a candidate even regardless of written examination viva voce making it discriminatory, arbitrary and violative of Articles 14, 16 and 19(1) (g) of the Constitution were submitted and accepted by the court with the background that in most developed countries, no viva voce forms a part of the evaluation process of Patent Agents Registration. The Delhi High Court acceded to Anvita Singh’s contentions.

This decision was later even referred and upheld in the Renu Rampal vs Union of India case decided on May 29, 2012.

Furthermore, not only do the concerns stand on the substantive terms as opined above, it gets supplemented by an observation of a curious mind on the calculations and calibrations of the Viva Voce Minimum Marks requirement.

According to the recent notification by IPO announcing the trade marks agent exam-2015, which has made clear that written examination and interview shall be for 90 and 10 marks respectively, with total of 100 marks.  This means one has to get minimum 36 marks in written examinations and 6 marks in viva and 50 in aggregate. So the mathematical connotation here betraying the letter of law is  this: when one can get maximum 10 marks in viva, and the aggregate has to be 50, then the minimum marks required in the written examination cannot be lesser that 40 which turns out to be 44.44% and not 40% as the rules require it to be.

One sullenly wonders that while these concerns glare back, the path to address them might mean another long stretched road of a PIL, one which will likely just elongate the time to crystallize the dreams of aspirants, most of which just resumed flight after 5 long years of wait.

From our side, we extend to all the aspirants the best of our wishes, and may this Trademark Agent Examination be a stepping stone to a more robust, thriving and positive IP ecosystem in India !

About the Author: Abhishek Pandurang, Partner at law firm Khurana & Khurana, Advocates and IP Attorneys and Swapnil Patil, Patent Associate at Khurana & Khurana, Advocates and IP Attorneys and can be reached at: abhishekp@khuranaandkhurana.com and swapnil@khuranaandkhurana.com.

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