Sana Herbals Private Limited filed CS(Comm) 1776/2020 against Mohsin Dehlvi and Dehlvi Remedies Pvt Ltd alleging infringement of its registered trademark NOKUFSYRUP (registered 15 May 2015) and passing off by defendants' use of NOKUF for cough syrups, claiming rights via assignment deed dated 19 September 1999 and prior use, seeking interim injunction under Order XXXIX Rules 1&2 CPC which was dismissed by Commercial Court on 21 December 2024 finding no prima facie case due to defendants' prior use since 1994 and registration of NOKUF in 1996. Appellant appealed in FAO(COMM) 77/2025 arguing defendants' use discontinuous post-1999 fire and no evidence of continuous use till 2024 while appellant built goodwill. The Division Bench reasoned that under Section 28(3) Trade Marks Act 1999 concurrent registrations grant equal rights to use without infringement action against each other per S. Syed Mohideen v. P. Sulochana Bai, prior continuous user from 1994 defeats passing off claim as appellant failed to challenge use during 1994-1999 gap implying acquiescence or abandonment of goodwill, equity favoring appellant but law prevailing. Appeal dismissed upholding refusal of interim injunction.
- Concurrent registration under Section 28(3) Trade Marks Act 1999 confers equal rights to use the mark on registered proprietors against each other, barring infringement action: S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683, Para 14; Para 20.
- Prior continuous user of trademark defeats claim of passing off even against later registered proprietor if no challenge raised during initial period implying acquiescence or abandonment of goodwill: Neon Laboratories Ltd. v. Medical Trends (P) Ltd., (2016) 2 SCC 683, Para 8; Para 12.
- Mere registration without continuous use does not entitle proprietor to injunction against prior user, but prior user must prove continuity: Para 17, Para 18.
Sana Herbals Private Limited Vs Mohsin Dehlvi & Anr., Order date: 5 January 2026, Case Number: FAO (COMM) 77/2025, CM APPL. 15229/2025, Neutral Citation: N/A, Name of court: High Court of Delhi at New Delhi, Name of Judge: Hon'ble Mr. Justice C. Hari Shankar and Hon'ble Mr. Justice Om Prakash Shukla.
[Readers are advised not to treat this as substitute for legal advise 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]
