Subsequent trademark registration does not constitute sufficient cause for condoning delay in a commercial appeal.

The Appellant manufactured and sold homoeopathic medicines under the mark HASLAB’S DIGESTO, claiming use since 1 April 1971.

Its earlier registration, TM No. 456926, expired in 1993 and was not renewed.

The Respondent used the mark DIGESTO PLUS for homoeopathic medicines and claimed use from 1980, relying on, inter alia, a Drugs Controller approval dated 13 August 1980, invoices and price lists.

After learning of the Respondent’s use in 2024, the Appellant instituted a passing-off action.

The Trial Court initially granted an ex parte injunction on 12 June 2024, but by order dated 19 January 2026 vacated it, holding that the Appellant had not established misrepresentation or likelihood of deception, while the Respondent had prima facie shown prior and continuous use.

The Appellant filed the appeal on 21 May 2026, with a delay of 76 days.

It relied on the subsequent registration, granted on 26 March 2026, of TM No. 5887111 for HASLAB’S DIGESTO, and sought condonation of delay.

Whether the 76-day delay in filing the appeal against the Trial Court’s interlocutory order could be condoned on the basis of the subsequent registration of the Appellant’s mark.

Whether the Trial Court had improperly exercised its discretion in refusing interim relief in the Appellant’s passing-off action, particularly on the issues of goodwill, prior use, deceptive similarity, misrepresentation, balance of convenience and irreparable injury.

Whether the subsequent registration of HASLAB’S DIGESTO entitled the Appellant to raise or pursue an infringement claim in the present appeal, although the suit and interim application had been considered on the basis of passing off.

Subsequent trademark registration does not constitute sufficient cause for condoning delay in a commercial appeal.

The Respondent had prima facie shown prior and continuous use.

The issues in the passing-off action included goodwill, prior use, deceptive similarity, misrepresentation, balance of convenience and irreparable injury.

The Trial Court held that the Appellant had not established misrepresentation or likelihood of deception, while the Respondent had prima facie shown prior and continuous use.

The subsequent registration of HASLAB’S DIGESTO was relied on by the Appellant as the basis for condonation of delay and for raising or pursuing an infringement claim, although the suit and interim application had been considered on the basis of passing off.

The Trial Court initially granted an ex parte injunction on 12 June 2024, but by order dated 19 January 2026 vacated it.