Introduction
In a straightforward yet important ruling on trademark protection in the pharmaceutical and skincare sector, a Division Bench of the Delhi High Court on 8 July 2025 dismissed an appeal by Kamal Raheja challenging an interim injunction restraining him from using the mark “MARKS GO” for skincare cream. The court held that the registered proprietor of a trademark enjoys exclusive rights to prevent infringement regardless of whether the mark is currently in commercial use due to a suspended drug manufacturing licence.
The Court clarified that lack of commercial exploitation does not automatically defeat an infringement action at the interim stage. The remedy for non-use lies in a separate rectification application under Section 47 of the Trade Marks Act, not as a defence in an infringement suit. This decision reinforces that valid registration provides strong prima facie protection, and infringing parties cannot escape liability by pointing to regulatory issues faced by the brand owner.
Factual Background
Hahnemann Pure Drug Co., the respondent, is the registered proprietor of the trademark “MARKS GO” in Class 5 under the Trade Marks Act, 1999, with registration dating back to 14 September 2010. The mark covers skincare cream and related products. The company discovered that Kamal Raheja, the appellant, was manufacturing and selling similar skincare products under the identical mark “MARKS GO”.
Hahnemann filed a commercial suit (CS(COMM) 346/2023) before the District Judge (Commercial Court-02), Rohini, seeking a permanent injunction against the appellant for trademark infringement. Along with the suit, it moved an application under Order XXXIX Rules 1 and 2 of the CPC for an interim injunction. On 8 June 2023, the trial court granted an ex parte ad interim injunction restraining the appellant and others from using “MARKS GO” or any deceptively similar mark for skincare products.
The appellant filed an application under Order XXXIX Rule 4 CPC seeking vacation of the injunction. Meanwhile, the respondent faced regulatory action: its drug manufacturing licence was suspended following a show cause notice under the Drugs and Cosmetics Act, 1940. The appellant argued that due to this suspension, the respondent could not commercially exploit the mark and thus had no justification to seek an injunction.
On 7 March 2025, the learned Commercial Court allowed the respondent’s injunction application, making the ex parte order absolute, and dismissed the appellant’s vacation application. It found the rival marks identical, used for similar goods, and rejected the appellant’s plea of acquiescence while noting the respondent’s registration and the appellant’s lack of priority.
Key Facts Summary
- Trademark: “MARKS GO”
- Registered Owner: Hahnemann Pure Drug Co.
- Appellant: Kamal Raheja
- Issue: Trademark infringement
- Key Argument: Non-use due to licence suspension
Procedural Background
The suit was instituted in 2023. The trial court promptly granted an ex parte ad interim injunction on 8 June 2023. After hearing both sides on the interim applications, the Commercial Court passed the detailed impugned order on 7 March 2025, confirming the injunction and rejecting the vacation plea.
Aggrieved, Kamal Raheja filed the present appeal under Section 13 of the Commercial Courts Act read with Order XLIII Rule 1(r) CPC before the Delhi High Court (FAO(COMM) 105/2025), along with applications for stay and other reliefs. The appeal was heard as an oral judgement on 8 July 2025.
Reasoning
The Division Bench noted that the appellant did not contest the core issues of registration, identity of marks, or similarity of goods. The sole argument was that the respondent’s drug licence suspension prevented commercial use of “MARKS GO”, rendering the injunction unjustified.
The court rejected this submission outright. It explained that rights against infringement flow directly from valid registration under Section 28(1) of the Trade Marks Act. Once a mark is registered and the registration is subsisting, the proprietor gains the exclusive right to use it and to obtain relief against infringement. Commercial user is not a prerequisite for maintaining an infringement action.
Section 29 of the Act defines infringement with reference to a “registered trademark”. The provisions protecting against infringement do not condition relief on actual market use by the registrant. While non-use for five continuous years can be a ground for rectification and removal of the mark under Section 47 (upon application by an aggrieved person), such removal is not automatic and does not retroactively validate infringement.
At the interim injunction stage, the plaintiff needs only to show a prima facie case. Section 31(1) provides that registration itself is prima facie evidence of validity. The appellant could not, at this stage, successfully argue invalidity or disentitlement based on the respondent’s regulatory issues under the Drugs and Cosmetics Act. Those issues might give the respondent remedies elsewhere, but they do not strip the registered mark of its statutory protection.
Key Statutory Provisions Explained
| Section | Provision Summary |
|---|---|
| Section 28(1) | Registration gives exclusive rights and the ability to seek relief against infringement. |
| Section 29 | Defines infringement based on registered trademarks. |
| Section 31(1) | Registration is prima facie evidence of validity. |
| Section 47(1) | Non-use can lead to removal, but only through application. |
| Section 135(1) | Provides remedies like injunctions, damages, or profit accounts. |
Key Judgments Discussed with Citations and Context
The Division Bench primarily relied on the statutory framework of the Trade Marks Act rather than citing specific external precedents in detail. It explained Sections 28(1), 29, 31(1), 47, and 135(1) in clear, accessible language:
- Section 28(1): Registration of a valid trademark gives the proprietor exclusive rights to use the mark for the registered goods/services and to seek relief against infringement. The court stressed that this right arises from registration itself, not from actual commercial exploitation.
- Section 29: Infringement is defined with respect to a registered trademark. Each sub-section begins with “a registered trademark”, making registration the key trigger rather than the user.
- Section 47(1): Non-use for five years (subject to conditions) can lead to removal of the mark from the register, but only upon an application by an aggrieved person. The Registrar cannot act suo motu, and removal is not automatic. The court clarified that an infringer cannot use non-use as a shield in an infringement suit; the proper remedy is a separate rectification proceeding.
- Section 31(1): Registration is prima facie evidence of validity in legal proceedings, strengthening the plaintiff’s case at the interim stage.
- Section 135(1): Relief in infringement suits includes injunction, damages, or an account of profits, reinforcing the strong protection for registered marks.
The judgement also referenced the broader definition of “use of a mark” under Section 2(2)(b) and (c), noting that it encompasses visual representation and association with goods, not merely actual sales. Provisions like Sections 30, 33, 34, and 35 that can insulate defendants in specific situations were noted, but none applied here.
The reasoning was kept simple: registration creates strong rights that infringement actions protect, while non-use challenges must follow the specific statutory route under Section 47 rather than serving as a defence.
Final Decision of the Court
The Division Bench dismissed the appeal (FAO(COMM) 105/2025) and the connected applications. It found no reason to interfere with the impugned order dated 7 March 2025 of the Commercial Court, which had made the interim injunction absolute. The interim restraint against the appellant using “MARKS GO” or any deceptively similar mark for skincare products remained in force.
Point of Law Settled in the Case
Exclusive Rights of Registered Trademark
A valid and subsisting registration of a trademark gives the owner the exclusive right to stop others from using an identical or deceptively similar mark for similar goods, even if the owner is temporarily unable to sell the product due to regulatory issues like a suspended drug licence. Lack of current commercial use does not weaken the right to an injunction against infringement at the interim stage.
Non-Use and Rectification Process
If someone wants to challenge a registered mark on grounds of non-use, they must file a separate application for rectification and removal under Section 47 of the Trade Marks Act after the required five-year period. They cannot use non-use as a defence in the main infringement suit to escape an injunction.
Prima Facie Validity at Interim Stage
At the interim stage, registration itself provides strong prima facie evidence of validity, and courts will protect registered marks unless specific statutory exceptions apply. This protects brand owners from copycats while directing non-use disputes to the proper rectification process.
Importance of Core Arguments in Appeals
The ruling also reminds parties that arguments in appeals should focus on the core issues; raising only peripheral points (like licence suspension) without contesting infringement findings is unlikely to succeed.
Case Details
| Particulars | Details |
|---|---|
| Case Title | Kamal Raheja Vs Hahnemann Pure Drug Co. |
| Date of Order | 08 July 2025 |
| Case Number | FAO (COMM) 105/2025 |
| Neutral Citation | 2025:DHC:5613-DB |
| Name of Court | High Court of Delhi |
| Name of Honourable Judges | Justice C. Hari Shankar and Justice Ajay Digpaul |
Disclaimer: Readers are advised not to treat this as a substitute for legal advice, as it may contain errors in perception, interpretation, and presentation.
Written By: Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi
