Legal Updates (September 28 – October 03, 2026)
CASE UPDATES
Where a trademark has been judicially recognised as well-known and the plaintiffs have established prior recognition of their rights, the continued unauthorised use of the mark by third parties in online business listings, particularly on Google Search and Google Business Profile, causes irreparable injury to goodwill and reputation that cannot be compensated in monetary terms
The Delhi High Court in the case of Agarwal Packers and Movers Ltd vs Agarwal Packers and Movers Delhi [CS(COMM) 1021/2026] dated September 22, 2026, has held that where a trademark has been judicially recognised as well-known and the plaintiffs have established prior recognition of their rights, the continued unauthorised use of the mark by third parties in online business listings, particularly on Google Search and Google Business Profile, causes irreparable injury to goodwill and reputation that cannot be compensated in monetary terms.
The High Court noted that the plaintiffs had placed on record material demonstrating substantial goodwill and reputation in the trademark ‘AGARWAL PACKERS & MOVERS’, and that the said mark had been judicially recognised as a well-known trademark in India. The Court placed reliance on the judgment and decree dated April 04, 2013, in DRS Logistics (P) Ltd. v. Rajesh Agarwal [CS(OS) 1131/2008], which had declared the mark as well-known and granted a permanent injunction restraining use of identical or similar marks.
The Court further observed that the plaintiffs had succeeded in obtaining recognition of their rights on five prior occasions through interim orders or final judgments. The Court found that the use of the plaintiffs’ trademark, name, logo and other identifying indicia by third parties in business listings, particularly in relation to the same or allied services, was prima facie capable of causing confusion and deception amongst members of the public. The Court also noted that the plaintiffs had no practical means of identifying every infringing listing at any given point of time, as listings on Google Business Profile and Google Maps are continuously created and modified.
The Court accepted that ‘AGARWAL PACKERS & MOVERS’ is a well-known trademark in India, and injuncted Defendant nos. 1 to 70 from using the plaintiff’s mark ‘AGARWAL PACKERS & MOVERS’ or any identical or deceptively similar variant as a trademark, trade name, corporate name, keyword, meta tag, or in any other manner, including through Google Search and Google Business Profile listings.
Object of the injunction would be defeated if notice were to precede it, given that the defendant deals in cash, holds substantial stock of infringing goods, has shifted its premises from the GST-registered address, and is prepared to despatch goods across State lines
The Delhi High Court in the case of Aktiebolaget Volvo vs Pooja Lubricant [CS(COMM) 940/2026] dated September 24, 2026, has observed that the object of the injunction would be defeated if notice were to precede it, given that the defendant deals in cash, holds substantial stock of infringing goods, has shifted its premises from the GST-registered address, and is prepared to despatch goods across State lines, including to Delhi, creating a reasonable apprehension that advance notice would enable dispersal of the infringing stock into the market. The injury likely to be caused to the plaintiffs was held not adequately compensable in damages, as continued sale of lubricants under the impugned marks threatens to erode the distinctiveness of a coined mark used for over a century, and any deficiency in the defendant’s product quality is likely to be attributed to the plaintiffs.
The Court observed that the mark ‘MAX VOLVO’ reproduces the plaintiff’s mark ‘VOLVO’ in its entirety, with the prefix ‘MAX’ being a commonplace, laudatory expression suggesting superlative quality, which does not detract from ‘VOLVO’ being the dominant and distinctive element. The mark ‘MAX VOLWO’ differs from ‘MAX VOLVO’ only in the substitution of the letter ‘W’ for ‘V’, making the two marks visually near-identical and practically indistinguishable when spoken, since the sounds represented by ‘V’ and ‘W’ are commonly pronounced alike. A purchaser of average intelligence and imperfect recollection is likely to perceive ‘MAX VOLWO’ as nothing but a variant of ‘VOLVO’.
The Court further observed that the goods in question are identical, as the defendant deals in lubricants (engine oil and gear oil) and each of the plaintiffs’ registrations covers goods in Class 4, sold through the same trade channels to the same class of purchasers (vehicle owners, mechanics and workshops). Since the impugned marks are not identical with the registered mark in the strict sense, the case falls within Section 29(2)(b) of the Trade Marks Act, 1999, and the Court need not, at this stage, invoke the presumption under Section 29(3).
The Court further treated ‘VOLVO’ as a coined, inherently distinctive mark not found in any English dictionary, with the prefix ‘MAX’ being a commonplace laudatory expression that does not detract from the dominant element. The Court explained that substitution of ‘W’ for ‘V’ in ‘MAX VOLWO’ was held visually near-identical and practically indistinguishable when spoken, since ‘V’ and ‘W’ are commonly pronounced alike.
Where the e-auction notice contains an express clause providing for forfeiture of the Earnest Money Deposit (EMD) and any other amounts deposited upon failure to pay the balance sale consideration within the stipulated time, forfeiture operates as a necessary consequence of the bidder’s default
The Supreme Court in the case of ASJ Finsolutions Pvt Ltd vs Vikram Bajaj [Civil Appeal No.13023 of 2025] dated September 28, 2026, has held that an express forfeiture clause in the e-auction notice binds the bidder despite the absence of an express forfeiture stipulation in Schedule I of the Liquidation Process Regulations, 2016. The Court clarified that where the e-auction notice contains an express clause providing for forfeiture of the Earnest Money Deposit (EMD) and any other amounts deposited upon failure to pay the balance sale consideration within the stipulated time, forfeiture operates as a necessary consequence of the bidder’s default.
The Court also said that absence of an express forfeiture stipulation in Schedule I of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 does not protect a defaulting bidder, since the contractual terms freely accepted at the time of bidding govern the consequences of non-payment. Further, the Triple Test, relating to a hidden agenda to rig the auction, lack of genuine financial capacity, or extraneous reasons preventing payment, does not assist a bidder who has admittedly defaulted and fails to substantiate financial capacity through credible material evidence.
A successful bidder who participates with full knowledge of title disputes and the ‘as is where is’ nature of the sale cannot, after the deadline expires, seek prior title deeds as a ground to resile from payment of the balance sale consideration, added the Court.
The Court noted that although Schedule I of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 caps the EMD at 10% of the reserve price and does not expressly provide for forfeiture, the e-auction notice in this case contained a specific and explicit forfeiture clause. The Court observed that the appellant had bid with full knowledge of the dispute over the sale deed and had deposited 25% of the bid amount (Rs. 6.39 crores, comprising Rs. 2.55 crores as EMD and Rs. 3.84 crores towards part of the balance consideration) without any protest.
The Court emphasised that the appellant could not turn around and rely on the regulations to escape the consequences of a contractual forfeiture clause freely accepted at the time of bidding. The Court further observed that the appellant’s request for prior sale deeds came only after the 30-day period had expired and just before the 90-day deadline, which was impermissible given the ‘as is where is’ nature of the sale.
The Court found that the appellant had not sought verification of title deeds at any point during the bidding process and could not project this omission as a ground to resile from payment. The Court also noted that the higher price realised in the subsequent auction reflected the inherent value of the property and could not be treated as a set-off against the forfeited amounts.
An unregistered lease deed for 30 years is inadmissible in evidence under Section 49 of the Registration Act, and occupants who are close relatives of the suspended directors of the Corporate Debtor cannot defeat the liquidation mandate by asserting tenancy rights based on such unregistered documents
The New Delhi Bench of the National Company Law Appellate Tribunal (NCLAT) in the case of Duke Fashions (India) Ltd vs Pramod Kumar Misra [Company Appeal (AT)(INS) No. 1462 of 2026] dated September 22, 2026, has clarified that the liquidator can validly continue an eviction application originally filed by the Resolution Professional, as Section 35 of the IBC vests pari materia powers identical to Sections 18 and 25, and the contents of the application govern maintainability. The Tribunal explained that Section 238 of the IBC operates as a complete override and prevails over the East Punjab Urban Rent Restriction Act, 1949 to the extent of any inconsistency, being a special, later legislation enacted for time-bound resolution and realisation of distressed assets.
Further, the Tribunal emphasised that an unregistered lease deed for 30 years is inadmissible in evidence under Section 49 of the Registration Act, and occupants who are close relatives of the suspended directors of the Corporate Debtor cannot defeat the liquidation mandate by asserting tenancy rights based on such unregistered documents.
The Tribunal recorded three key factual findings of the NCLT: (a) the Corporate Debtor is the absolute owner of the subject properties; (b) the appellants are not tenants but unauthorised occupants illegally using the property; and (c) the purported lease for 30 years was never registered and therefore could not be received in evidence under Section 49 of the Registration Act. The appellants were found to be close relatives of the suspended directors of the Corporate Debtor, falling within the definition of ‘related party’ under Section 5(24) of the IBC, and the NCLT observed that this was a deliberate game plan to throttle the auction process, which had already failed nine times.
The Tribunal noted that both properties were reflected in the Balance Sheet and Books of Accounts of the Corporate Debtor and formed part of the liquidation estate under Section 36(3)(a) of the IBC. Sections 35(1)(b), (d), (e), (k) and (l) of the IBC collectively confer comprehensive authority upon the Liquidator to take custody and control of the assets of the Corporate Debtor, and these powers are not merely enabling but impose mandatory statutory duties.
The NCLAT observed that the Supreme Court in Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta [(2021) 7 SCC 209] had clarified that the NCLT has jurisdiction to adjudicate disputes which arise solely from or relate to the insolvency of the Corporate Debtor, provided the nexus with insolvency exists. The Tribunal further observed that the Supreme Court’s decision in Vishal N Kalsaria Vs Bank of India [(2016) 3 SCC 762], was decided on Jan 20, 2016, before Section 238 of the IBC was enacted, was confined to the SARFAESI Act, and was premised on the protection of a blameless, unrelated, rent-paying third-party tenant, conditions entirely absent in the present case where the appellants are related parties who have admittedly not paid any rent for seven years.
The NCLAT also relied on its own decisions in Jhanvi Rajpal Automotive Pvt Ltd. v. Resolution Professional [CA(AT)(Ins.) No. 1417 of 2022] and Adinath Jewellery Exports v. Mr. Brijendra Kumar Mishra [Company Appeal (AT) (Insolvency) No. 748 of 2022], holding that the Liquidator/RP can seek eviction of tenants, licensees and other occupants before the NCLT without resorting to civil or rent control proceedings, and that the Rent Act is relevant only where there exists a registered lease deed supported by regular payment of rent. The constitutional argument based on Entry 18 of List II of the Seventh Schedule was rejected, with the NCLAT holding that the IBC is legislation on insolvency enacted under Entries 9 of List III and Entries 43-44 of List I, and the mere incidental effect of an IBC order on possession does not convert an insolvency matter into a landlord-tenant matter.
ESI amounts contributed by both employer and employee, lying with the Corporate Debtor, are held in trust and fall within the exclusion under Section 36(4)(a)(i) of the IBC. Such amounts cannot form part of the liquidation estate available for distribution under Section 53 of IBC
The Chennai Bench of the National Company Law Appellate Tribunal (NCLAT) in the case of Employees State Insurance Corporation vs Sri Lakshmi Srinivasa Jute Mills [Company Appeal (AT) (CH) (Ins) No.410/2022] dated September 25, 2026, has held that ESI contributions deducted from employee’s wages and payable by the employer under the ESI Act, 1948 are held by the Corporate Debtor in trust for the beneficiaries and fall within the exclusion under Section 36(4)(a)(i) of the IBC. The Tribunal explained that the procedural act of filing a claim in Form-B does not convert a statutory trust amount into an ordinary operational debt of the Corporate Debtor.
The NCLAT clarified that Section 36(4)(a)(iii) of the IBC, which specifically refers to provident fund, pension fund, and gratuity fund, is not the source of the exclusion for ESI contributions; the exclusion flows independently from Section 36(4)(a)(i) read with Section 40(4) of the ESI Act. Hence, ESI contributions cannot be subjected to the waterfall distribution mechanism under Section 53 of the IBC, and a Resolution Plan that treats them as ordinary Government or Operational Creditor dues requiring only a fractional payout is liable to be set aside to that extent.
The Tribunal observed that the issue was no longer res integra and stood squarely covered by its earlier decision in Nurani Subramanian Suryanarayanan, Liquidator of M/s. Care IT Solutions Pvt Ltd. v. Employees State Insurance Corporation [TA (AT) No. 212/2021], wherein the Tribunal considered the interplay between Section 40(4) of the ESI Act, 1948 and Section 36(4)(a)(i) of the IBC, and held that ESI amounts contributed by both employer and employee, lying with the Corporate Debtor, are held in trust and fall within the exclusion under Section 36(4)(a)(i) of the IBC. Such amounts cannot form part of the liquidation estate available for distribution under Section 53 of the Code.
The Tribunal held that the mere fact that ESIC submitted its claim in Form-B and that the claim was consequently described as an Operational Creditor claim cannot alter the substantive character of the amount. The form prescribed for submission of a claim is procedural in nature and cannot have the effect of converting an amount statutorily required to be held for the benefit of employees into an asset beneficially belonging to the Corporate Debtor. Consequently, the Respondents’ estoppel argument based on Form-B filing was rejected.
A purchaser who acquires a project through a SARFAESI e-auction steps into the shoes of the erstwhile owner and cannot claim a fresh capital subsidy where the original sanction stood withdrawn and the scheme had expired
The Delhi High Court in the case of Goodwill Energy Enterprises vs Union of India [W.P. (C) 4328/2022] dated September 21, 2026, has held that a successor acquirer of a project through e-auction under SARFAESI cannot seek revival of capital subsidy once the underlying scheme has lapsed, and mere correspondence seeking a progress report does not extend the life of the scheme. The Court explained that a purchaser who acquires a project through a SARFAESI e-auction steps into the shoes of the erstwhile owner and cannot claim a fresh capital subsidy where the original sanction stood withdrawn and the scheme had expired.
The Court said that a letter merely requesting submission of a progress report, synchronization certificate, and extension of a bank guarantee does not amount to condonation of delay in commissioning or revival of a withdrawn subsidy. Accordingly, once a subsidy scheme has lived its stipulated life and served the purpose for which it was introduced, no benefit can be granted under it to a subsequent claimant, as doing so would amount to issuing a fresh sanction in the absence of any operative scheme.
The Tribunal observed that the present petition was filed assailing letters dated Feb 27, 2019, and Sep 06, 2019, and thus the petition had been filed after a period of more than two years, with absolutely no justification given for the delay. The Court placed reliance on the Judgment of the Apex Court in Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu [(2014) 4 SCC 108], wherein it was held that the doctrine of delay and laches should not be lightly brushed aside, and a writ court is required to weigh the explanation offered and the acceptability of the same. The Court noted that while no statutory limitation period is prescribed for instituting a writ petition under Article 226 of the Constitution, undue delay and laches may nonetheless defeat the petitioner’s right to challenge the impugned order, as it could cause prejudice to the opposite party.
On merits, the Court observed that the petitioner came to acquire the project on Oct 07, 2017, pursuant to the SARFAESI proceedings, and even after taking over the project, the petitioner did not immediately approach the respondent or assert any entitlement to subsidy under the scheme. The Court further observed that the contention of the petitioner that the respondent had condoned the delay in commissioning of the project by its letter dated June 19, 2018, was misplaced, as the said letter was merely a request for a report regarding the progress of the project and compliance in relation to the Bank Guarantee, and did not extend the life of the Scheme or provide for continuation of the subsidy beyond the period prescribed under the Scheme.
Herbalife established a prima facie case of trademark infringement under Section 29 of the Trade Marks Act, 1999 and passing off against the sellers of ‘Herbawish’ and ‘Herbawish Nutrition’ nutritional products, on the ground that the rival marks were visually and phonetically deceptively similar to its registered ‘Herbalife’ trademarks with the common prefix ‘Herba’ enhancing deception
The Delhi High Court in the case of Herbalife International vs Ashish Kumar [CS(COMM) 997/2026] dated September 15, 2026, has found prima facie infringement of near-identical trade dress and three-leaf device copycat of Herbalife’s registered marks, and directed Amazon, Flipkart and IndiaMART to take down 18 listings within 36 hours and disclose seller KYC details. The Court found that Herbalife established a prima facie case of trademark infringement under Section 29 of the Trade Marks Act, 1999 and passing off against the sellers of ‘Herbawish’ and ‘Herbawish Nutrition’ nutritional products, on the ground that the rival marks were visually and phonetically deceptively similar to its registered ‘Herbalife’ trademarks with the common prefix ‘Herba’ enhancing deception.
The Court treated the copying of the Plaintiff’s trade dress, including the three-leaf device, colour combination, white container background, green band and label placements, as evidence of dishonest intent, holding that the rival products were difficult to distinguish by a person of average intelligence and imperfect recollection. Further, use of the Plaintiff’s registered three-leaf device by the Defendants was prima facie held to be trademark infringement, with the Court noting that since the products were nutritional, inferior quality could pose health risks to the public and dilute the ‘Herbalife’ mark.
The Court observed that the Plaintiff had made out a prima facie case for grant of ex parte ad interim injunction against Defendants No. 1 and 2, with the balance of convenience lying in favour of the Plaintiff and a likelihood of irreparable harm if the injunction was not granted. The Court noted that the impugned marks ‘Herbawish’ and ‘Herbawish Nutrition’ were visually and phonetically deceptively similar to the Plaintiff’s ‘Herbalife’ trademarks, with the deception being enhanced by the common prefix ‘Herba’, and that since the rival products were identical with a common consumer base and trade channels, there was every likelihood of confusion among members of the public.
The Court further observed that the dishonest intent of Defendants No. 1 and 2 was evident from their copying of the Plaintiff’s packaging/trade dress, including the three-leaf device, colour combination, white container background, green band and placements, making the rival products difficult to distinguish by a person of average intelligence and imperfect recollection, and that the use of the registered three-leaf device prima facie amounted to infringement under Section 29 of the Trade Marks Act, 1999. The Court also noted that since the products in question were nutritional products, inferior quality could pose health risks to the public and tarnish the Plaintiff’s image while diluting the ‘Herbalife’ trademarks.
Section 31(i) of the SARFAESI Act begins with a non-obstante clause and exempts any security interest created in agricultural land from the coercive recovery mechanism of the Act, with the twin objects of protecting agriculturists’ livelihood and discouraging creditors from accepting such land as security
The Andhra Pradesh High Court in the case of Jampani Satyanarayana vs Canara Bank [Writ Petition No.15623 of 2025] dated September 28, 2026, has held that Section 31(i) of the SARFAESI Act begins with a non-obstante clause and exempts any security interest created in agricultural land from the coercive recovery mechanism of the Act, with the twin objects of protecting agriculturists’ livelihood and discouraging creditors from accepting such land as security. The Court clarified that the classification of land as agricultural in revenue records is not conclusive; the question must be determined as a matter of fact from the nature of the land, the use to which it was being put on the date of creation of the security interest, and the purpose for which it was set apart.
Moving ahead, the Court emphasised that the burden lies on the borrower to prove that the secured properties were agricultural lands and that agricultural activities were actually being carried on at the time of creation of the security interest, and this burden can be discharged through a combination of revenue records, Adangal/Pahani, pattadar passbook, third-party affidavits, cultivation certificates, soil health cards, and contemporaneous Advocate Commissioner inspection reports.
The Court considered the principles laid down by the Supreme Court in ITC Limited vs. Blue Coast Hotels Limited and Indian Bank vs. K. Pappireddiyar, observing that the classification of land in revenue records as agricultural is not conclusive, and that the question must be determined as a matter of fact from the nature of the land, the use to which it was being put on the date of creation of the security interest, and the purpose for which it was set apart.
The Court further pointed out that the secured creditors, especially leading banks, are expected to exercise due diligence before accepting agricultural land as security, they must cross-check the description in the registered sale deeds, verify the nature of the land, and where necessary obtain legal opinion. The Court also cautioned that where an auction notice is set aside due to procedural lapses or statutory violation, the auction purchaser is entitled to a full refund of the sale money along with interest from the date of deposit till the date of payment, and his prior legal rights must be restored, leaving the parties to work out their substantive remedies before the Civil Court.
