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CIRCUMSTANCES FOR ANTON PILLER ORDER AND MAREVA INJUNCTION IN IPR

INTRODUCTION

The Anton Piller order and Mareva Injunction are both Civil remedies that are available to the Plaintiff in commercial cases mainly in cases related to matters of Intellectual capacity in English law. The Anton Piller Order is an Order permissible by the Court as Injunctions of Permanent Nature. Mareva Injunction is an Injunction that is available to the party as an injunction of Temporary Nature. Both these orders are also passed together by the court in cases of the most extreme circumstances. The courts of all jurisdictions along in the world have opinioned that both these Orders together will have a drastic effect on the defendant’s business and so are used sparling. These orders are also given separately by the court in necessary situations.

The Mareva Injunction is commonly known as the freezing Injunction and is an interlocutory injunction, as the name suggests the name is derived from a famous Case of 1975 Mareva Compania Naviera SA v. International Bulkcarriers SA[1] which is known as the Mareva (a ship’s name) case. In this case, the ship owners and the charter were in conflict regarding the matter of the money transferred to the charter bank account in London. The Charter had paid the shipowners and the plaintiff the first instalment and they failed to pay the second instalment; they could do so easily but they refused to do so.  Lord Denning in 1975 gave the order to make sure the money in the account will not be appropriated in such a way that it will cause further harm to the shipowners. The Mareva case judgment was based on the then-recent judgment on an ex-parte case Nippon v. Karageorgis[2]. The Anton Piller order, which is an interlocutory order is commonly known as a Nuclear weapon of Plaintiff. It has derived its name from a known case the Anton Piller KG v. Manufacturing Process, (1976)[3]. The order was first granted in this case and it became a foundation for subsequent cases in evolving the law.

INDIAN LAW

In India, in cases relating to Intellectual property, the laws enacted are normally from The Copyright Act of 1957, The Trademarks Act of 1999, The Patents Act of 1970, The Design Act of 2000, The Geographical Indications of Goods Act of 1999, The Protection of Plant Varieties and Farmers Rights Act of 2001, The Semiconductor Integrated Circuits Layout-Design Act of 2000 and The Biological Diversity Act of 2002. The Acts provide a necessary remedy for an injunction against the infringement in their respective area of law.  The IPR regime is backed by core statutes of procedural nature like Crpc and CPC. The principles laid down in the English precedents are frequently relied upon in Indian courts. Thus, the use of both the Anton Piller order and Mareva injunction in Indian courts is still in its initial stage. The high courts of Indian Jurisdiction have found that the merit of a particular case has actually enabled the parties to have a need for this kind of injunction in their cases. The interlocutory injunction in Indian courts is granted under Order 39 Rule 1 and 2 of CPC, 1908 which are normally used in all courts of civil jurisdiction in India. In the case of the production of documents, the Court may summon the attendance of the witness to either produce the document or to give evidence in court under Order 16 Rule 6 and 7 of CPC, 1908. A search warrant in India is granted under Sections 93-95 of the CrPC,1973. and are applicable to all courts of criminal jurisdiction in India.

THE MAREVA INJUNCTION

The Mareva injunction is a part of a temporary injunction or a perpetual injunction. This injunction is an unusual form of an interlocutory injunction that is intended to restrain the defendant from disposing of the assets which may become a piece of the necessary evidence to satisfy the plaintiff’s claim or from getting rid of it from the court’s Jurisdiction.

THE ANTON PILLER ORDER

The Anton Piller Order is for an authorized entry and inspection which has some similarities to search warrants in India but is different in practicality. The Anton Piller Order allows the authorized entry and inspection of the plaintiff by the defendant. Entry without the defendant’s permission is by law trespass. But the defendant is so ordered by the court in personam to permit the plaintiff with the result that, if he does not do so then he is in contempt of court. In cases where certain evidences are recovered then they are accompanied by a Mareva injunction to be seized.

CONDITIONS THAT NEED TO BE SATISFIED

  • FOR MAREVA INJUUNCTION
  1. In cases in which a Mareva injunction is to be granted by the court in Intellectual property cases certain conditions are to be satisfied, they are:-
    • Proof of damage is not necessary for granting the injunction if it has proved that there is an infringement of a right
    • That there will be irreparable harm or a chance for further damages.
    • That the is a great probability that the defendant continues the infringement.
    • That this is just not a simple rivalry matter, and a Prima facie case exists.
    • That the plaintiff should be able to locate the assets to enforce any further final judgment.
    • The injunction is on the principle of equity and not as a matter of right (Discretionary)
  • FOR ANTON PILLER ORDER
  1. In cases where an Anton Piller Order is to be issued there are certain matters that are ascertained, these are as follows; –
    • The plaintiff must be able to show that there is a prima facia
    • The plaintiff must demonstrate that he/she has suffered and that it is likely that they will face even further irreparable damage in the event that an order is not granted.
    • There ought to be clear evidence of the facts that the defendant has in his possession some incriminating evidence and that there is an actual real possibility that one or many of them will be destroyed in due course.[4]

SOME NOTABLE CASES

In a 1983 case WEA Records Ltd v. Visions Channel 4 Ltd.[5]  The court said that following the case of Hallmark Cards Inc v. Image Arts Ltd,[6] the Court ordered that once the Anton Piller order has been executed, it is a spent force and hence it can’t be set aside. The only remedy in such a case is to claim damages as provided in the counter undertaking and not by setting aside the order The European Court of Human Rights in Chappell v. United Kingdom[7]. The Anton Piller order was granted by the court and had been executed by the bath police, the legality of the order was challenged in the case and the court ordered that the order will stand and that in case of misuse the plaintiff should pay for the damages caused. The Supreme court of India in M/S Gujarat bottling Co.Ltd. & Ors v. The Coca-Cola Co. & Ors[8] said that relief by interlocutory injunction should be granted for mitigating the risk of injustice to the plaintiff during the trial where there is the uncertainty of the existence of the legal right and the alleged violation. The courts must weightage the balance of convenience and use the court’s discretion in the matter to decide whether there is an actual need for the order at hand.

CONCLUSION

The applicability and need of these two types of injunctions in India are that it is becoming an eminent matter in the cyber world to secure and protect the content of the maker, thus it is natural to get a remedy for infringement in the IPR matters. The most common tendency in the legal world in India is that by the time the final order is passed in a matter the actual life situation would have seen a drastic change, this could happen within a second or a year, and the entire situation may or might not change. In cases of any procedural law or penal law, there is a need to be more stringent measure in the common space to ensure certain standards of legal efficiency, the growth of IPR in the 21st century itself point to the growth of the law for further and better protection for the people who use the benefit of the cyber world as a day-to-day matter in their life.

Author(s) Name: Lenita Thomas Kutty (Presidency University, Bangalore)

References:

[1][1980] 1 All ER 213  

[2] Nippon Yusen Kaisha v. George Karageorgis and John Karageorgis [1975] EWCA Civ J0522-4

[3]1 All ER 779, Souvik Bhadra and Arka Majumdar “Anton Piller Order in UK and its Possible Implications in India”, Journal of IPR, vol. 12, (September 2007), Pg 488, http://docs.manupatra.in/newsline/articles/Upload/01C250ED-5A41-4B35-8361-3CFB38064867.pdf> accessed on 6th November 2022

[4] Ibid 494, 496

[5](1983) All ER 589 at 591

[6](1977) FSR 150

[7](1989) A152-A Complain no.10461/83 European court of human rights

[8] <https://indiankanoon.org/doc/104935066/> accessed on 7 November 2022.