Under the Commercial Courts Act, 2015, pre-suit mediation is mandatory, and merely claiming urgency is insufficient without demonstrable evidence in the pleadings.

JUDGMENT :

Arijit Banerjee, J.

1. By consent of the parties, the appeal and the connected application were taken up for hearing together.

2. This appeal is directed against a judgment and order dated May 6, 2025, whereby the defendant’s application for revocation of leave granted under Section 12A of the Commercial Courts Act, 2015, being GA-COM 6 of 2025, was allowed by a learned Judge of this Court. Consequently, the suit stood dismissed and the interim order passed in the suit stood vacated.

Submission of the appellant

3. The appellant / plaintiff is, inter alia, engaged in the manufacture and sale of plastic pipes, machines and machine tools, under the mark ‘Pankaj Flex’ and other trademarks i.e., ‘Pankaj Flexy’ and ‘Pankaj’ which have been assigned to the plaintiff. Alleging that the defendant is selling similar products under a deceptively similar trademark, i.e., ‘Poly Punkaj’, thereby creating confusion as regards the source of the goods, the appellant filed the instant suit for infringement of trademark and passing off.

4. In the plaint, the appellant sought for dispensation of pre-suit mediation under Section 12A of the Commercial Courts Act, 2015 (in short ‘the CC Act’), on the basis of pleadings which read as follows:-

“98. The instant suit is for infringement and passing off, which contemplates urgent reliefs to protect the interests of the plaintiff. The Trade Marks Act, 1999 makes it abundantly clear that it is the option of the plaintiff to seek urgent interim reliefs. The defendant has obtained registration of the mark “POLY-PUNKAJ” imitating the same colour combination and artistic work which has been adopted by the plaintiff and the mark appears to have been registered on 3rd December, 2023. The plaintiff has duly filed an application for rectification on 4th January, 2024. The parties are already litigating over its rights in respect of the registrability of the defendant's mark “POLY PUNKAJ” before the Trade Marks Registry, wherein it is the specific case of the plaintiff that the impugned mark “POLY-PUNKAJ” is devoid of any distinctive character and is not capable of distinguishing the goods of the defendant from those of the other. Furthermore, it is also the specific case of the plaintiff that the defendant's purported mark “POLY-PUNKAJ” is identical to the plaintiff's prior mark “PANKAJ” and is used in respect of similar goods covered by the said mark and there exists a likelihood of confusion on the part of the public and by adopting the impugned mark “POLY-PUNKAJ” the defendant is seeking a wrongful association with the plaintiff and its mark “PANKAJ”. There is bad faith involved on the part of the defendant in applying for and obtaining the registration of the mark “POLY-PUNKAJ”, despite being fully aware of the plaintiff's mark “PANKAJ”. Every sale of goods by the defendant under the impugned mark gives rise to a fresh cause of action to the plaintiff to sue for infringement of copyright, trademark and passing off. In such circumstances, there is no possibility of any pre-suit mediation and the plaintiff is beseeching this Hon'ble Court to dispense with the provisions of Section 12A of the Commercial Courts Act, 2015. Considering that the defendant has not only adopted an identical and/or deceptively similar mark as that of the plaintiff's mark, while also adopting a slavish imitation of the artistic work for the goods marketed, sold and distributed under the said “PANKAJ” marks by the plaintiff, the plaintiff reasonably believes that any attempt at a pre-institution mediation and settlement of the disputes with the defendant would tantamount to