Ex-Parte Order Appointing Commissioner To Conduct Search/Seizure In IPR Infringement Cases Is To Preserve Evidence, Necessary: Karnataka HC

The Karnataka High Court has said that in intellectual property rights cases, the ex-parte order of appointment of the Court Commissioner for search and seizure–an Anton Piller order, is to ensure that a surprise element remains intact in the absence of which the respondents can easily remove the infringing products when the commissioner visits the latter's premises.

Anton Piller orders are court orders giving the right to search premises and seize evidence without prior warning in order to prevent destruction of evidence specially in case of intellectual property right infringement. 

Justice H T Narendra Prasad observed this while disposing of a petition filed by Newspace Research and Technologies Private Limited, who had challenged the order of the trial court refusing to appoint a court commissioner on the application made by it to seize the data from the respondents.

"it is very clear that in the intellectual property rights cases, the ex-parte order of appointment of the Court Commissioner is to ensure that a surprise element remains intact, in the absence whereof the respondents would easily be in a position to remove the infringing products when the court commissioner visits the premises of the respondent. If the ex-parte order is not passed, the respondents/defendants may likely to uninstall or remove the infringed version of the software from their machines, thereby the person tampering with the evidence of the actual usage of the software. It is not as much collecting the evidence but to preserve and protect the infringing evidence. Therefore, an exparte order appointing the Court Commisisoner for search and seizure of the business premises of the respondents/defendants is necessary," the court said. 

During the pendency of the petition the high court vide its order dated December 6,2024, passed an ex-parte order appointing the Court Commissioner to carry out search and seizure of the operation of the data storage media, files, folders, documents etc, in the premises of the respondents/defendants and directed the Commissioner to execute the warrant for seven days and report the same.

The court noted the growth in intellectual property rights by saying “Intellectual property, though intangible, is probably the most important form of property today. The definition of intellectual property has widened with growth of international trade and globalization of economy, giving the whole business a paradigm. Intellectual property having developed into a powerful commercial asset with the ever-evolving digital technology.”

Emphasising on the need for passing such orders it said, “While the traditional remedies include injunction, cost, damages, etc. what has assumed more popularity in these days is the non traditional forms of remedies like, Anton Piller order, interlocutory injunction, etc. Anton Piller orders are legal mechanisms that allow an applicant to search a defendant's premises and seize evidence without prior notice or warning. They are often referred to as search orders or civil search warrants.”

“If the ex-parte order is not passed, the respondents/defendants may likely to uninstall or remove the infringed version of the software from their machines. Thereby, the person tampering with the evidence of the actual usage of the software. It is not as much collecting the evidence but to preserve and protect the infringing evidence. Therefore, an ex-parte order appointing the Court Commissioner for search and seizure of the business premises of the respondents/defendants is necessary,” it underscored.

Following which it narrated the situations in which the Court can pass the ex-parte order–Where the plaintiff has an extremely strong prima facie case; Where the actual or potential damage to the plaintiff is very serious; Where it was clear that the defendant possessed vital evidence; There was a real possibility that the defendant might destroy or dispose of such material so as to defeat the ends of justice.

It further said that purpose of Anton Piller order is the "preservation of evidence". The Court also has to pass an order safeguarding the interest of the defendant while granting ex-parte order, like undertaking by the plaintiff to compensate the defendant for the losses he wrongly suffered have to be provided while granting Anton Piller order, it added. 

Accordingly it disposed of the petition directing the trial court to pass appropriate orders, in accordance with law, deciding the legality and validity of the Court Commissioner's report, after giving an opportunity to both parties.

Appearance: Advocate Angad Kamath for Advocate Ramya S for Petitioner.

Senior Advocate Arun Kumar K for Advocates Rakshit Pai and Vybhavashree S for Respondents.

Citation No: 2025 LiveLaw (Kar) 39

Case Title: Newspace Research and Technologies Private Limited and Anirudh Putsala & others

Case No: WP No.32999 OF 2024

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