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By
Mainan Ray
LL.M(Corporate Law),Roll-374
National Law University, Jodhpur
19 th SEPTEMBER,2011Email: [email protected]
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Anton Piller Order in UK------An overview
Application of Anton Piller Order in Indian legal syetem
Trips Provisions
Ab(use) of the order----The problems &the solutions
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Infringment of IPR
Traditional Remidies
´Nuclear weaponµ
Anton Piller KG V Manufacturing Process(1976) 1ALL ER 779
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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 confidentialinformation to other German companies, sought an
ex-parte order for infringing their copyrights and
misusing confidential information and got the order
ultimately
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In the aforesaid case Lord Ormond and Lord Denning laid the
emphasis on following points:
A strong prima facie case against the defendant
The potential or actual damage done to the defendant isserious
Clear evidence that the defendant occupying plantiif·s
necessary and crucial documents or information and high
degree of risk of being destroyed by the defendants
No harm on the part of the defendant
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The most consideration is the bonafide interest of the plaintiff
and rendering justice
Defendant·s ignorance about plaintiff's rights is not acceptable
Even if in case of disclosure of Defendant·s hives
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In India no direct use of Anton piller order but orders made in
line of Anton Piller order:
Order 39 of the CPC,1908
Trademark Act, 1999 The Geographical Indications of Goods(Registration &
Protection) Act,1999
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NationalGarmentsvs.NationalApparels,1990,
PTC , 1998
This is not an case of Anton Piller but sought for interlocutory
order against defendantBucyrus Europe ltd vs. Vulcan Industries Engineering Co Pvt
Ltd
In this case the appealant was granted exparte order
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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 rightholder of the identity of third persons involved in the production and distribution of the infringing goods orservices 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 itsimplementation.
(2) The right of information enunciated in Article 47,if applies in a criminal case, may infringe the rule of privilegeagainst self-incrimination.
In the House of Lords case of Rank Film Distributors V. Video Information Centre{1981}2 All E.R.76, thedefendants to an action for breach of copyright successfully sought the discharge of an Anton Piller Order whichordered them to disclose the names and addresses of their suppliers and customers for illicit copies of thePlaintiffs· films, on the ground that this would tend to expose them to proceedings for a criminal offence. TheHouse 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 desision.I n the same year, the Parliament in England enacted the SupremeCourt Act 1981 and in section 72 the Act reverse the effect of Rank Film and restores the full effectiveness ofAnton Piller Order by taking away the Privilege against self-incrimination in proceedings for infringement ofintellectual property rights.
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Art.43(1) speaks for substance evidence
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 ofexpenses including appropriate attorney·s fees.
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The provisions of TRIPs Agreement, in particular Article 50,
equip the judicial authority with the power to order prompt
andeffective provisional measures to:
(a) Prevent an infringement of any IPRs from occurring andentering into the channels of commerce. (Preventive Injunction)
(b) Preserve relevant evidence in regard to the alleged
infringement. (Anton PillerOrder)
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It too has the potential to be misused to detriment to the plantiff
Causes damaging and irreversible consequences
Without allowing defendant a chance of heraing
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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
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PICTURE ABHI BAKI HAI MERE DOST«.
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