Introduction
In cases of infringement and piracy, ensuring a fair and effective legal process is paramount, particularly in preventing the destruction or concealment of infringing evidence before legal action can be taken. To address this challenge, courts often appoint a Local Commissioner under Order 26 Rule 9 of the Code of Civil Procedure (CPC) to conduct on-site inspections of premises where counterfeit goods are manufactured or infringing services are provided. The LC is responsible for gathering evidence, ensuring fair enforcement of judicial orders, and preserving the integrity of the legal process. However, unauthorized disclosures related to LC appointments often lead to premature leaks, allowing defendants to conceal or tamper with evidence.
To avoid this, strategic Identity Masking by the Local Commissioner ensures that evidence remains intact, safeguarding the plaintiff’s rights and preserving the integrity of the legal process. By allowing ex-parte inspections without prior notice to the defendant, Order 26 Rule 9 plays a pivotal role in protecting intellectual property by ensuring that infringing goods, counterfeit products, or pirated software are not tampered with before legal proceedings take their course.
Importance of Masking Identities
- Preventing Evidence Tampering
In IPR litigation, evidence protection is crucial. If the defendant is aware of the impending Local Commissioner visit, they may alter, remove, or conceal infringing products. By masking the defendant’s identity in cause lists and restricting access to court proceedings related to Local Commissioner appointments, courts can uphold the element of surprise, preventing defendants from evading liability.
- Enhancing the Objectivity of the Local Commissioner
The Local Commissioner must operate as a neutral entity. If the defendant learns about the Local Commissioner appointment beforehand, they may attempt to influence the process through external means. Masking the identities of both parties minimizes undue influence and ensures an unbiased execution of the commission.
Potential Ambiguities and Concerns
- Premature Disclosure of LC Orders
Even though courts direct that LC appointment orders should not be uploaded online until execution, leaks can still occur through the registry or involved parties. Masking the plaintiff’s and defendant’s identities in judicial records can add another layer of security.
- Open Court Proceedings
While transparency is a fundamental principle of justice, unrestricted access to proceedings can lead to leaks. Restricting attendance during LC appointment hearings to necessary stakeholders ensures confidentiality.
- Ruling in ‘Microlube’ case
The Microlube India judgment mandated the highlighting of the main defending party in a suit to prevent procedural misuse. However, this ruling did not account for the risk of Local Commissioner information leaks. A balanced approach could involve redacting the defendant’s name during the initial hearing while ensuring their identification in subsequent proceedings if advance notice is required.
Recommended Strategies for Efficient Masking
- Confidential listing of LC Applications: Interim applications for Local Commissioner appointments should be listed separately and prioritized to minimize exposure.
- Restrict Public Access: Limiting public access at hearings concerning Local Commissioner appointments to relevant parties only would prevent premature information leaks.
- Confidential Defendant Identity: To maintain confidentiality, the defendant’s name should be kept confidential or using John Doe as a defendant. The suit and application numbers would still provide clarity to the involved parties.
- Seal Local Commissioner orders: Local Commissioner orders should be sealed before dispatch, and only designated personnel within the court registry should handle such documents to ensure accountability.
Case Laws
Several landmark cases underscore the importance of masking identities in intellectual property enforcement:
- Autodesk Inc. and Anr. vs. A.V.T. Shankardas and Anr.
This case affirmed that “The object of appointment of a Local Commissioner in software piracy matters is not as much to collect evidence but to preserve and protect the infringing evidence… in the absence of an ex parte appointment of a Local Commissioner, there is likelihood that such evidence may be lost, removed, or destroyed.“
The Delhi High Court reaffirmed the necessity of ex-parte appointments to prevent evidence destruction, emphasizing that secrecy and surprise are vital to ensuring a fair and effective legal process in intellectual property enforcement.
- L’Oreal S.A. vs. Mr. Munna Mushtak
In this case, the court appointed a Local Commissioner to inspect the defendant’s premises and seize infringing goods. The court initially issued orders against John Doe (unknown persons) to maintain confidentiality, ensuring that the defendants were unaware of the impending action.
As noted in the case, “During the execution of the commission on 10.10.2020, a huge quantity of infringed goods was recovered. Application was moved for substitution since earlier the orders were against John Doe/unknown persons.”
This approach ensured that infringing evidence was preserved before the defendant’s identity was formally disclosed.
Conclusion
In the ongoing battle against software piracy and intellectual property infringement, the careful masking of identities plays a vital role in preserving the fairness and integrity of legal proceedings. By implementing ex-parte appointments, maintaining confidentiality in filings, and utilizing surprise inspections, the legal system can ensure that justice is served while minimizing the risk of evidence tampering. In an era where digital piracy is increasingly sophisticated, a well-structured approach to evidence preservation is key to protecting intellectual property rights.
References
https://indiankanoon.org/doc/70860978
https://www.casemine.com/judgement/in/56e66a4c607dba6b534360d0
https://indiankanoon.org/doc/562453
Authored By: AUTHOR: MS. PRACHI RAI, LAW STUDENT AT AMITY UNIVERSITY MADHYA PRADESH
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