Continuing intellectual property infringement may justify urgent interim relief and bypass pre-institution mediation despite filing delay.

A suit alleging continuing intellectual property infringement may contemplate urgent interim relief under Section 12A of the Commercial Courts Act, so pre-institution mediation is not mandatory where the plaint, supporting material and cause of action show immediacy from the plaintiff's standpoint. The assessment is made on a wholesome reading of the pleadings and documents, not by testing the ultimate merits of the injunction prayer. Continuing acts of manufacture, sale or offer for sale constitute fresh and recurring wrongs, and the risk of irreparable harm to goodwill, reputation, proprietary rights, consumer confusion and deception can justify urgency. Mere delay in filing the suit does not, by itself, negate that urgency.

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Issues: Whether a suit alleging continuing infringement of intellectual property rights, with a prayer for interim injunction, contemplates urgent interim relief under Section 12A of the Commercial Courts Act, 2015 so as to exempt the plaintiff from pre-institution mediation; and whether mere delay in filing the suit negates such urgency.

Analysis: Section 12A makes pre-institution mediation mandatory unless the suit contemplates urgent interim relief. The test is to be applied from the standpoint of the plaintiff on a wholesome reading of the plaint, the supporting documents and the nature of the cause of action, not by examining the ultimate merits of the interim prayer. In a case of continuing intellectual property infringement, each act of manufacture, sale or offer for sale constitutes a fresh and recurring wrong. The continuing nature of the infringement, the risk of irreparable harm to business reputation, goodwill and proprietary rights, and the public interest in preventing deception and consumer confusion impart immediacy to the relief sought. Mere lapse of time by itself does not negate urgency where the wrong is ongoing.

Conclusion: A suit for continuing infringement of intellectual property rights can contemplate urgent interim relief under Section 12A, and mere delay in institution does not, by itself, defeat the plea of urgency.

Ratio Decidendi: In suits alleging continuing intellectual property infringement, urgency for the purpose of Section 12A must be assessed from the plaintiff's standpoint on the plaint and accompanying material, and ongoing infringement may justify exemption from pre-institution mediation notwithstanding delay.

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