The short answer is – yes.
As per Section 124 of the Trade Marks Act, 1999, when rectification proceedings are pending, the suit has to be stayed, pending final disposal of the rectification proceedings. However, as per sub-section (5), a stay cannot preclude the Court from making any interlocutory order (including any issuing any order granting an injunction, directing accounts to be kept, appointing a receiver or attaching any property), during the period of the stay of the suit.
This was also re-iterated by the High Court of Delhi in Hamdard National Foundation (India) & Anr. v. Sadar laboratories Pvt. Limited [I.A.12032/2020 in CS (COMM) 551/2020]. In the present case, the Plaintiffs, who own rights in the well-known trademark ROOH AFZA, were aggrieved by the Defendant’s adoption and use of the mark DIL AFZA. Accordingly, the Plaintiffs filed a suit seeking, inter alia, permanent injunction, and also filed an application seeking temporary injunction. The Plaintiffs had also initiated a rectification action against the Defendant’s registration for the mark DIL AFZA.
While arguing that the suit be stayed in light of the pending rectification action, the Defendant also contended that since the relief sought in the interim application was same as the relief sought in the main suit, no interim injunction could be granted. The Court, however, did not accept the Defendant’s contention and observed that an interim injunction can be granted in light of Section 124(5) of the Trade Marks Act, 1999. While the Court eventually did not grant an interim injunction to the Plaintiffs, the injunction was denied because the Court was prima facie of the opinion that there was no likelihood of confusion between the two marks.
Hence, a party’s right to claim an interim relief is not precluded even when the suit is stayed till the disposal of the rectification proceedings.
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