The Supreme Court has held that the requirement of pre-institution mediation under Section 12A of the Commercial Courts Act cannot be mechanically applied in cases involving continuing infringement of intellectual property rights, such as trademark violations. The Court observed that insisting on mediation before filing a suit in such situations would effectively leave the plaintiff without a remedy, allowing the infringer to continue profiting under the cover of procedural formalities. The provision, the Court said, was never intended to produce such an “anomalous result.”

"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 form

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