The Delhi High Court has held that pre-litigation mediation is not mandatory in Intellectual Pro case wherein urgent interim relief has been sought.

The single-judge bench of Justice Pratibha M. Singh observed that the requirement for the same under Section 12A of the Commercial Court Act stands satified when one party denies offer of amicable settlement of other party.

'"A perusal of the correspondence, extracted hereinabove, leaves no doubt in the mind of the Court that the Defendants were in no way interested in an amicable resolution of the dispute. Instead, the hand of mediation which was lent by the Plaintiff was met with a tight slap. The Defendant's conduct clearly is not in the spirit of any amicable resolution – let alone mediation. Hence, the requirement of Section 12A of the CCA duly stands satisfied on both counts", the Court stated.

The Court was adjudicating upon an application filed on behalf of the Plaintiff seeking exemption from instituting pre-litigation mediation, in accordance with Section 12A of the Commercial Courts Act, 2015.

The plaintiff had filed a suit seeking a permanent injunction restraining the Defendants from passing off of trademark, infringement of copyright, unfair competition, rendition of accounts, damages, and other reliefs.

Counsel appearing for the Plaintiff submitted that the Defendants are using the identical mark ‘BOLT’ with an identical colour scheme for the business of Electric Vehicle charging points, which is similar to one of the services provided by the Plaintiff. She submitted that the use of the mark ‘BOLT’ by the Defendants is completely violative of the global reputation and goodwill which has been acquired by the Plaintiff, and would constitute passing off. She further submitted that the Plaintiff has around 100 registrations in more than 50 countries. Accordingly, an urgent interim injunction was sought in the matter.

On the other hand, Mr. Naman Maheshwari, ld. Counsel appearing for the Defendants has raised a preliminary objection seeking rejection of the Plaint for non-compliance of Section 12A of the CCA. Reliance was placed on M/s. Patil Automation Pvt. Ltd. Vs. Rakheja Engineers Pvt. Ltd., 2022 Latest Caselaw 645 SC

It was the contention of the defendants that, with effect from 20th August, 2022, the Supreme Court has held that pre-litigation mediation under Section 12A is mandatory and that no suit can be entertained without having resorted to pre-litigation mediation in accordance with Section 12A of the CCA.

Apart from the above observation, the Court also opined that maintainability of the suit will not be affected as the plaintiff checks both the below boxes:

i. Firstly, the Plaintiff had attempted an amicable resolution which was clearly refuted, rejected and condemned by the Defendants;

ii. Secondly, the Plaintiff has also sought urgent interim relief before this Court and is entitled to maintain the present suit

While deliberating on whether ‘urgent interim relief’ means only such relief which is sought due to immediate past events or can it be urgent interim relief which the Plaintiff seeks in the overall facts and circumstances of a particular case, the Court mentioned Laxmikant V.Patel Vs. Chetanbhat Shah & ANR, 2001 Latest Caselaw 637 SC

"As per the experience seen in intellectual property cases, the relief of interim injunction, including at the ex-parte stage and ad-interim stage, is extremely important. Such matters do not merely involve the interest of the Plaintiff and the Defendants, which are the contesting parties before the Court, but also involve the interest of the customers/consumers of the products and services in question. Intellectual property cases relate to a wide gamut of businesses such as - medicines, FMCG, food products, financial services, technology, creative works such as books, films, music, etc. Recent trends also point towards large scale misuse on the internet. In some cases, due to misuse of known marks and brands, the consumers are being duped into parting with large sums of money. The rights of the parties are affected almost on a daily basis as there is continuous manufacturing, selling, and offering of services or goods to the customers. The ambit of urgent interim relief that may be required to be granted is extremely varied and depends on the facts of each case. Such reliefs are usually granted by Courts not merely for protection of statutory and common law rights, but also in order to avoid confusion, deception, unfair and fraudulent practices, etc., in the marketplace."

The Court also reiterated that it is the settled legal position that delay by itself does not disentitle a Plaintiff to the grant of urgent interim relief.

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