JUDGMENT :

(C. Saravanan, J.)

1. Heard learned counsel for the plaintiff and learned counsel for the respondent at length and have perused Section 12A of the Commercial Courts Act, 2015, which was introduced with effect from 03.05.2018 and the decision of the Hon'ble Supreme Court in Patil Automation Private Limited and ors. vs Rakheja Engineers Private Limited [2022 SCC OnLine SC 1028] and the four decisions relied by the learned counsel for the defendant in the following cases: M/s.Micro Labs Limited vs A.Santhosh dated 14.09.2022, Mohamed Aboobacker Chank Lungi Pvt. Ltd. vs Revathy Textiles and ors. dated 27.09.2022, Mr.K.Varathan vs Mr.Prakash Babu Nakundhi Reddy dated 13.10.2022 and M/s.Mango Mass Media Pvt. Ltd vs M/s.Bayshore Records and ors. dated 18.11.2022.

2. After hearing learned counsel appearing for the plaintiff and learned counsel for the defendant at length and after perusing the provisions of Section 12A of the Commercial Courts Act, 2015, Order XXXIX Rule 1, Rule 2 and Rule 3, this Court is of the view that the plaintiff, being the dominus litis, is entitled to file an application for interim injunction and Order XXXIX of Civil Procedure Code. It cannot be stated that the suit filed by the plaintiff would be barred if the plaintiff fails to exhaust the remedy of Preinstitution Mediation, in accordance with the procedure that is contemplated under Section 12A (1) of the Commercial Courts Act, 2015. Whether, the plaintiff would be entitled to interim relief under Order XXXIX (1) of Civil Procedure Code is another issue, which has to be decided on merits. Such an issue cannot be decided at the threshold of admission of suit, where, the plaintiff admittedly seeks for urgent interim relief from the Court.

3. Section 12A of the Commercial Courts Act, 2015 has to be read plainly, without any other additions to it. If a suit is filed along with an application for urgent interim relief, then, it cannot be said that the plaintiff should have also exhausted the alternate remedy, if there was a delay. A delay in instituting a suit may dis-entitle the plaintiff equitable relief under Order XXXIX of Civil Procedure Code. However, in the context of disputes under the Intellectual Property Law, the Hon'ble Supreme Court, in Midas Hygiene Industries (P) Ltd. and another vs Sudhir Bhatia and others [(2004) 3 SCC 90] in paragraph 5, has held as under:

“5. The law on the subjects is well settled. In case of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest.”

This view is also echoed by the Calcutta High Court earlier in Express Bottlers Services Private Ltd. vs Pepsico Inc. and ors. [1989 PTC 14] specifically in paragraph 47, the law relating to the leaves in trade mark suit have been discussed, which reads as under:

“47. It is true that distinctiveness of the mark may be lost by extensive piracy so that the mark becomes public juries. It was held in (33) National Bill Co. vs. Metal Goods Manufacturing Co. reported in AIR 1971 SC 868 that mere neglect to proceed against the infringers does not necessarily constitute abandonment if it is in respect of infringements which are not sufficient to affect the distinctiveness of the mark even if the proprietor is aware of them. When neglect by the owner of the mark to challenge the infringement is alleged, the character and the extent of the trade carried on by the infringers and their position in the commercial world have to be reckoned in considering whether the registered proprietor has lost his mark by such neglect. To establish the plea of common use, the use by other persons should be shown to be substantial. In the present case, there is no evidence regarding the extent of the trade carried on by the alleged infringers or their re