Application for injunction denied due to parties' mutual agreement to stop using each other's trademarks, highlighting the importance of prior mediation under Section 12A of the Commercial Courts Act.

JUDGMENT

Prathiba M. Singh, J. (Oral)

I.A.3298/2022 (u/S 12A)

1. This is an application filed by the Plaintiff under Section 12A of the Commercial Courts Act, 2015 (hereinafter the "Act") seeking exemption from entering into pre-institution mediation and settlement with the Defendant.

2. As per Section 12A of the Act, if a suit does not contemplate any urgent interim relief, it cannot be instituted unless the party suing has exhausted the remedy of exploring mediation at the pre-litigation stage.

3. This Court notices that there are various categories of proceedings filed before the IPD which was notified in July of 2021. Such proceedings include -

a) Suits seeking injunction, damages and other reliefs;

b) Appeals from the orders of various IP Offices;

c) Original petitions like cancellation petitions, rectification petitions, revocation petitions and other miscellaneous petitions;

d) Writs, Revisions and other proceedings arising from orders of the IP offices or proceedings before the Commercial Courts.

4. The provisions of Section 12A would be applicable to category (a) above and not to the other categories. However, in a majority of the suits seeking permanent injunctions, urgent temporary relief is also sought.

5. Recently in Changsha Sinocare INC v. Rajesh Kumar, [CS (COMM) 27/2022, decided on 14th January 2022], a ld. Single Judge was considering a suit where recovery of money was sought and exemption under Section 12A was sought on the ground that the legal notice issued by the Plaintiff did not evince any positive response from the Defendant. In those facts, the Court observed:

"6. However, this Court is of the view that it is when there is a difference of opinion regarding mutual liabilities that a dispute arises. In this case, the refusal of the defendant to pay the amount demanded by the plaintiff has resulted in a dispute and in terms of Section 12A of Commercial Courts Act, 2015, this dispute had to be first tackled through mediation.

7. Since no reason has been given for seeking exemption, the application [I.A. 688/2022] is dismissed."

6. Thus, the above was a case where on facts the Court was of the opinion that the suit being one for recovery, without availing of the remedy under Section 12A, the suit could not have been filed.

7. It is thus directed that in suits filed before the IPD, wherein applications for interim injunction are filed and urgent interim relief is sought, such leave would be presumed in view of the language of Section 12A. Accordingly, a separate application would not be required where ever urgent interim relief is being sought by the Plaintiff. Moreover, even if urgent interim relief is sought by the Plaintiff but the Court is of the opinion that the parties ought to be relegated to mediation, an order referring the matter to mediation can always be passed.

8. Ordered accordingly. Application is allowed and disposed of.

I.A.3297/2022 (for exemption)

9. This is an application seeking exemption from filing Original/Certified copies of documents, translated copies of documents clearer copies of documents. Allowed, subject to all just exceptions.

10. Application is disposed of.

I.A.3296/2022 (additional documents)

11. This is an application filed on behalf of the Plaintiff to file additional documents within 30 days. Whatever documents the Plaintiffs wishes to file, let the same be filed within two days.

12. Application is disposed of.

I.A.3295/2022 (court fee)

13. This is an application seeking extension of time for filing the court fee. Ld. Counsel submits that the court fees has already been deposited in the