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  • Writer's pictureAnkita Sabharwal

Pre-Litigation Mediation Not Mandatory In Matters Concerning Urgent Relief: Delhi High Court


Introduction


The Hon’ble High Court of Delhi in the case of Bolt Technology Ou V. Ujoy Technology Private Limited & Anr. while adjudicating upon an application filed on behalf of Bolt Technology seeking exemption from instituting pre-litigation mediation, has held that pre-litigation mediation is not mandatory in Intellectual Property cases wherein urgent interim relief has been sought.


Background


The present suit was instituted by Bolt Technology (hereinafter the “Plaintiff”) seeking permanent injunction against Ujoy Technology (hereinafter the “Defendant”) for allegedly using the identical mark 'BOLT' along with the logo, in relation to an identical business of charging points for electric vehicles. The Plaintiff further filed an application seeking exemption from instituting pre-litigation mediation, in accordance with Section 12A of the Commercial Courts Act, 2015.


It was the case of the Plaintiff that apart from using an identical mark in an identical colour scheme, the Defendants had made their mobile application available under the identical mark “BOLT”, both on Google Play and Apple App store. It was further alleged that a search for the mark ‘BOLT’ on the Google Play Store and the Apple App Store shows the competing applications of the Plaintiff and the Defendant.


On the other hand, the Defendant sought rejection of the plaint claiming non-compliance of Section 12 of the Commercial Courts Act, 2015. It was contended by the Defendant 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 under the said Section. It was argued by the Plaintiff that the Supreme Court’s order cannot be applied in matters wherein urgent relief has been sought. The Plaintiff further affirmed that a legal notice dated 24th May, 2022 was served upon the Defendants whereby the Plaintiff had clearly informed the Defendants that the Plaintiff is willing to amicably resolve the dispute. However, no such sentiment was reflected by the Defendants in their reply dated 5th June, 2022 to the said legal notice. Thus, it was affirmed by the Plaintiff that the Defendant cannot choose to make submissions before the Hon’ble Court, which are in fact contrary to its actual conduct. While arguing upon the urgency of relief, the Plaintiff contended that the Defendants’ mobile application is available for downloading on a daily basis, and hence, urgent relief ought to be granted in the present case, restraining the Defendants from using the mark ‘BOLT’ and the accompanying logo.


Findings of the Court


The Court, while recognizing the nature of dispute and the urgency of relief observed that “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 products and services in question. Intellectual property cases relate to a wide gamut of businesses such as - medicines, FMCG, food products, financial services, technology, and creative works such as books, films, music, etc. Recent trends also point toward large-scale misuse of 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 the 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 held that it was evident from the conduct of the Defendant that it was 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. Thus, the Defendant cannot place reliance on Section 12 of the Commercial Courts Act, 2015, when its own conduct was in fact not in the spirit of any amicable resolution – let alone mediation.


However, on the basis of the submissions of the Defendant, the Court noted that the Defendant is willing to explore an amicable resolution of the dispute, the matter was referred to Delhi High Court Mediation and Conciliation Center.

The matter has now been listed on 12th September for reporting the outcome of mediation or for hearing of the application seeking urgent relief.


Conclusion


In the past, right holders have had to wait for a grant of relief by the courts in view of the provisions of Section 12 of the Commercial Courts Act, 2015. This case provides the much-required clarity on the provision, especially in cases wherein urgent relief has been sought by right holders.


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