A founder discovers a copycat selling under a near-identical mark. The instinct is to file suit tomorrow. Then the lawyer raises a wrinkle most people have never heard of: before you can file this commercial suit, the law may require you to try mediation first.
That requirement is Section 12A of the Commercial Courts Act, 2015. It makes pre-institution mediation mandatory for commercial disputes — and trademark suits are commercial disputes — unless the suit contemplates urgent interim relief. That single exception is the hinge on which most IP litigation strategy now turns.
This guide explains what Section 12A requires, how the urgent-relief carve-out works in practice, and when mediation is genuinely the smarter first move rather than a box to tick.
What Section 12A actually requires
Section 12A says a suit that does not contemplate any urgent interim relief shall not be instituted unless the plaintiff has first exhausted the pre-institution mediation process, conducted through the authority notified for it. The idea is to divert disputes that can settle away from courts that are already stretched.
Read literally, that would sweep in trademark suits. But the words does not contemplate any urgent interim relief do a lot of work — and the Supreme Court has confirmed that Section 12A is mandatory, which makes the exception the thing everyone actually litigates about.
Section 12A is mandatory. Which is exactly why the urgent-relief exception matters so much.
The urgent-relief exception, and why IP suits usually fit it
Most trademark infringement suits are built around an interim injunction — an order stopping the infringer while the case runs. An injunction is urgent interim relief. So a suit genuinely seeking one falls within the exception and can be filed without going through mediation first.
The courts have been clear that this cannot be a fiction. You cannot bolt a hollow prayer for urgent relief onto a plaint just to skip mediation; judges look at whether the urgency is real on the facts. But where an infringer is actively trading on your brand right now, the urgency usually is real, and the exception applies honestly.
- Live infringement, seeking an injunction: urgent relief is contemplated — mediation is not a precondition.
- A claim only for past damages or accounts, no injunction: no urgency — Section 12A mediation is required first.
- A contractual or royalty dispute with no live infringement: often no urgency — mediation likely applies.
Weighing whether to mediate or move for an injunction? A short call tells you exactly what to file and what it costs.
Get a read on your options →When mediation is the smarter first move anyway
The exception lets you skip mediation. It does not always mean you should. There are disputes where a mediated resolution beats a litigated one even when you could go straight to court:
- Coexistence is realistic. Two brands in different segments or regions may be able to agree boundaries. A coexistence or delimitation agreement can protect both without a decree.
- The other side is a potential partner. Distributors, ex-licensees and former co-founders are people you may deal with again. A settlement preserves the relationship a suit would burn.
- Speed and confidentiality matter. Mediation is private and can conclude in weeks. A public suit is neither.
- The legal position is mixed. If your own mark has weaknesses, a negotiated exit can be worth more than a gamble on an interim order.
Mediation also produces settlements that, once recorded, carry the weight of a decree — so a deal reached there is enforceable, not merely a handshake.
The right to skip mediation is not the same as the wisdom of skipping it.
How the process runs
Where Section 12A applies, the plaintiff applies to the notified mediation authority. The process is time-bound — it must conclude within a set period, extendable by consent — so it does not become its own source of delay. If it settles, the settlement is recorded and is enforceable. If it fails, the authority issues a non-starter or failure report, and the plaintiff is then free to file the suit.
Either way, before you commit to a path, make sure the underlying rights are solid: a live, correctly-classed registration and clean evidence of use give you leverage in the mediation room and in the courtroom alike. Read filing a trademark suit in the commercial courts for what happens when mediation is not the route.
The strategic takeaway
How the exception plays out in real filings
In day-to-day practice, the Section 12A question is decided at the drafting table. If there is live infringement and you are moving for an injunction, the plaint is drafted to seek that urgent relief and the mediation requirement falls away. If the only relief you genuinely need is past damages or an account of profits, the honest position is that mediation applies first.
The mistake to avoid is dressing up a non-urgent claim in urgent language. Courts examine whether the urgency is real, and a defendant who spots a hollow urgency plea can attack the maintainability of the whole suit under Section 12A. That turns a procedural shortcut into a self-inflicted wound. The cleaner discipline is to be candid: if it is urgent, show why; if it is not, mediate and keep the option of suit in reserve.
Handled well, the provision is not an obstacle at all. It is a fork in the road that lets you match the dispute to the right process — fast injunctive relief for active infringement, structured settlement for everything that was never going to need a courtroom.
Section 12A did not slow trademark enforcement down. For live infringement, the injunction route is open as it always was. What it did was give brand owners a real, structured, enforceable alternative for the disputes that were never going to need a trial — and the founders who use it well settle faster, cheaper and more privately than a suit would ever allow.
Your brand is only yours when you file it.
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