Black Diamond: High Courts & Post-IPAB Supervisory Writ Jurisdiction
Earlier this week, the Delhi High Court issued judgment in Black Diamond v. Black Diamond Motors. The case is of interest, for it raises an important issue regarding the limits — known and imposed — of the supervisory writ jurisdiction of High Courts in intellectual property cases.
The Issue
The issue in Black Diamond is of the failure of a court of first instance (a District Court) to consider the impact of an order by an appeals court (at the High Court). In May 2021, this appeals court had declined, via an order of status quo, to grant the Plaintiffs’ interim injunction motion over the BLACK DIAMOND trade mark, since the litigants had common predecessors. This had the effect of vacating a prevailing interim injunction, operating ex parte against the Defendants. The Defendants, in their turn, read the appeals court order to mean an emptying out of the Plaintiffs’ trade mark rights in the first instance. These rights, affirmed by the court of first instance in January 2022, accordingly came up for challenge before the Delhi High Court here.
First, some background.
The re-organization of intellectual property claims as commercial suits after the termination of the Intellectual Property Appellate Board (IPAB) has an important effect on cases of this nature. Challenges to full District Court orders — such as the January 2022 order impugned by the Defendants here — will, in the first instance, trigger the civil writ jurisdiction of a single judge of the High Court. (A small point here on nomenclature. These types of actions are variously titled by different High Courts. They are referred to in Black Diamond, as in all such cases promoted up through the Delhi jurisdiction, as civil miscellaneous writs.)
On the Black Diamond facts, the High Court is presented precisely such a civil writ. Its import is significant. In effect, it is a review of a lower court order by a higher court; a kind of action that usually takes the form of an appeal.
However, where such a review would ordinarily be tested against Supreme Court-endorsed grounds for appellate scrutiny, the civil writ route means that High Court’s review must be set against its role as a supervisory writ court.
Black Diamond’s Framing of Supervisory Writ Jurisdiction
Here, it gets interesting.
Black Diamond understands this otherwise broad and deep power of review as one of mere superintendence. The High Court observes that its powers in civil writ proceedings:
“…cannot be exercised to upset conclusions, howsoever erroneous they may be, unless there was something grossly wrong or unjust in the impugned order shocking the court’s conscience or the conclusions were so perverse that it becomes absolutely necessary in the interest of justice for the court to interfere.”
This supervisory jurisdiction, the Court continues:
“…is limited to overseeing that an inferior court or tribunal functions within the limits of its authority, and is not meant to correct an error, even if apparent on the face of the record. A mere wrong decision without anything more is not enough to attract this jurisdiction.”
Though supported by Supreme Court law, this is still an extraordinarily high threshold for interference by a writ court. To no one’s surprise, then, Black Diamond finds that the January order by the court of first instance impugned by the Defendants does not rise to this standard.
Limits to Supervisory Writ Jurisdiction
There are two things to say at this stage.
The first is that this exercise of jurisdiction in a supervisory capacity strongly calls to mind a kind of supervisory role not lately unknown to Indian intellectual property observers. I refer here to the kind of supervisory role taken up de facto by the dying embers of the IPAB prior to its dissolution in August 2021. Indeed, as I wrote at the time, the IPAB’s supervisory turn, especially over the summer of 2020, was marked by three types of intrusions under the guise of appellate interference:
First, it is clear that the traditional judicial element of appellate interference — the part that asks whether there is a reasonable view to support the impugned decision — is being given short shrift…[the] approach of the IPAB appears to favour a full re-adjudication on merits of the case in appeal.
Second, the IPAB does, nevertheless, appear to be open to distinguishing procedural lapses from substantive ones…[The] revival of the procedural lapse as an appellate issue is of interest.
Finally, [it demonstrates] a willingness from the IPAB to issue full judgment in appeals, even if a more limited ruling will suffice.
Though they emanate from a similarly powerful assumption of supervisory function, the contrast between the IPAB (in attempting to do too much) and the Black Diamond Court (in deciding to do too little) is quite stark.
Civil Miscellaneous Writ Powers Generally
The contrast is instructive due to the second talking point to fall from Black Diamond: that a narrow line of non-interference is unwise because a wide exercise of civil miscellaneous writ jurisdiction is an integral part of the pastoral role played by the High Court in supervising trade mark cases.
This is borne out by several cases entrusted to the intellectual property division of the Delhi High Court under its civil miscellaneous writ powers post-IPAB.
The extraordinary Black Diamond standard for interference was certainly far from the High Court’s contemplation in setting aside an impleadment application in Singh v. Indian Plastic Footwear (October 2021). It did not affect the High Court’s powers to rubber stamp a settlement in Snapdeal v. Luxottica (November 2021). Nor did it prove to be an impediment in dismissing a res judicata motion against a later trade mark suit in Meghdoot Electric v. Pooja Electric (February 15, 2022). Nor, indeed, did it affect the High Court’s ability to issue an order directing expeditious disposal of an interim injunction motion in a trade mark suit in Sagar Ratna v. Maxx Food (February 23, 2022, literally the day after Black Diamond was decided).
Such examples are easily multiplied. The point underlying them that remains a salutary one: Black Diamond is the first post-IPAB whiff that the Delhi High Court has had of a high standard for supervisory civil writ interference.
I do not, for a minute, propose that the supervisory power be extended to the extreme lengths the IPAB stretched it to two summers ago. Even so, Black Diamond-style fetters, no matter how justified on facts, hardly commend themselves to endorsement either.
Surely, then, there lies a happy medium in between these extremes. Examples such as Singh, Snapdeal, Meghdoot, and Sagar Ratna testify to how the Delhi High Court itself continues to find this happy medium with regularity.
What the High Court — and, indeed, all High Courts — must do now is find it with consistency.
