The Supreme Court of India has answered in affirmative the issue as to whether a suit alleging continuing infringement of patent and design rights, accompanied by a prayer for interim injunction, can be said to contemplate ‘urgent relief’ within the meaning of Section 12A of the Commercial Courts Act, 2015, notwithstanding certain delay in the institution of the suit.
Section 12A calls for mandatory pre-litigation mediation except in cases requiring urgent relief.
The Supreme Court hence set aside the High Court decision, which had rejected the plaint for non-compliance of Section 12A, proceeded on the premise that lapse of time between the discovery of infringement and filing of the suit negated the element of urgency. The Apex Court observed that the insistence of pre-institution mediation in a situation of ongoing infringement, in effect, would render the plaintiff remediless allowing the infringer to continue to profit under the protection of procedural formality.
The Supreme Court observed that each day of continuing infringement aggravates injury to the intellectual property of the plaintiff and erodes its market standing, and hence urgency is inherent in the nature of the wrong. According to the Court, urgency does not lie in the age of the cause but in the persistence of the peril. It was held that the Court must look beyond time lag and evaluate the substance of the plea for interim protection.
Further, The Court in Novenco Building and Industry A/S v. Xero Energy Engineering Solutions Private Ltd. & Anr. [Judgement dated 27 October 2025] also observed that intellectual property disputes are not confined to the private realm but involve the element of public interest as well, as there is a need to prevent confusion in the market and to protect consumers from deception.
Accordingly, it was held that in actions alleging continuing infringement of intellectual property rights, urgency must be assessed in the context of the ongoing injury and the public interest in preventing deception. It was also held that mere delay in institution of a suit by itself, does not negate urgency when the infringement is continuing.