Losing an interim injunction at first instance isn’t the end. If you can show serious triable issues and target the trial court’s errors of principle, the Bombay High Court (IPD) can restore protection on appeal so your case isn’t rendered nugatory. Anchor your grounds to Wander v. Antox (limits on appellate interference but clear pathways where the judge ignored settled tests), the Commercial Courts Act s.13 (appealability of injunction orders), and outcome-shaping signals from recent IPD sagas like Burger King (Pune)—where status-quo protection during appeal became the battleground all the way to the Supreme Court.
The appellate lens: what the Bench will—and won’t—do
- The rule (Wander): An appellate court won’t re-try the interim application. It interferes only if discretion was exercised arbitrarily, capriciously, perversely, or the trial judge ignored settled principles (the trinity test and relevant precedent). Translate your grievance into errors of principle, not just “we disagree.”
- Why that matters: On appeal you must show serious triable issues that the trial court overlooked or misapplied, and why, absent protection, the appeal will be nugatory (market will tip; infringing footprint will explode; corrective damages won’t fix confusion).
- The door you use: Commercial Courts Act, 2015, s.13 expressly allows appeals from orders refusing (or granting) interim injunctions by the Commercial Division—within a narrow menu and timelines.
What convinces the IPD to revive protection (reasoning before result)
- Misapplication of the trinity test
Show that the judge demanded final proof instead of an interim prima-facie threshold, or treated balance of convenience/irreparable harm cursorily. Point to Midas Hygiene for the principle that where copying is clear, injunctions ordinarily follow even with some delay. - Ignoring likelihood-of-confusion factors
If the order cherry-picked dissimilarities or dissected the mark/label (instead of overall impression), cite Cadila to
re-center the analysis on how consumers actually buy and the totality test. - Overlooking status-quo risks during appeal
A live illustration: Burger King (Pune) after the trial court dismissed the suit citing local prior use, the High Court restrained the local outlet pending appeal to preserve the subject-matter. The Supreme Court later stayed that restraint, showing how finely balanced these equities are—and why your appeal papers must articulate why protection now prevents the appeal from becoming illusory. - Procedural missteps that matter
Refusals that are cryptic or ignore material evidence (comparisons, use records, surveys) justify interference. Your job is to map what the order didn’t engage with and the consequences of that omission in the marketplace. (Bombay IPD has repeatedly pressed the “duty to give reasons” in interim contexts.)
Bottom line: Frame your appeal around principled error + market consequences, not just re-arguing facts.
Comparison table — framing “serious triable issues”
| Trial-court misstep | Why it’s a legal error | How you frame it on appeal |
|---|---|---|
| Demanded near-final proof at interim stage | Violates interim standards; Wander warns against substituting merits adjudication | “Court applied the wrong threshold; ignored that prima facie ≠ conclusive proof.” |
| Dismissed confusion by dissecting elements | Cadila requires overall impression & market context | “Order cherry-picks differences; overlooks purchasing reality and side-by-sides.” |
| Hand-waved balance of convenience/irreparable harm | These are independent prongs; ignoring them is perversity | “Unreasoned on equities; risk of irreparable brand drift if appeal fails.” |
| Ignored clear copying despite “delay” | Midas Hygiene: clear infringement → injunction ordinarily follows | “Delay ≠ defence where imitation is obvious; see Midas.” |
Flowchart — making sure your IPD appeal isn’t nugatory
Map the order’s errors → Evidence storyboard → Consequence narrative → Targeted prayers
- Map doctrinal errors: Highlight Wander/Midas/Cadila misapplications in a one-page grid.
- Evidence storyboard: Clean side-by-side boards, sales/ad spends, confusion anecdotes, and timing (first seen vs filing) to show probabilities, not final proof.
- Consequence narrative: Explain concretely how 60–90 days without restraint will tilt the market (distribution lock-ins, SEO capture, aggregator placement) making a later win pyrrhic.
- Targeted prayers: Ask for status-quo or limited-scope restraint (SKU, city, platform) tailored to harm—courts prefer calibrated fixes in close calls. Use s.13 to justify urgency and appellate jurisdiction.
Case timeline (illustrative template you can mirror)
- T₀: Trial court refuses injunction (order identifies X, Y, Z reasons).
- T₀ + 2–3 weeks: Commercial appeal filed under s.13, with comparison boards and a nugatory-risk affidavit.
- Early hearing: Pitch serious triable issues + status-quo need; cite Wander constraints but show perversity/ignoring principles.
- Interim in appeal: Seek protective orders pending final disposal—learn from Burger King (Pune) dynamics and anticipate stay practice up to the SC.
Checklist — an appeal brief that lands
- One-pager of principles: Wander (scope of interference), Midas (delay ≠ defeat where copying is clear), Cadila (overall impression).
- Market-impact exhibit: What happens to footfall, shelf-share, SEO, aggregator rankings without restraint.
- Narrow remedy menu: Offer graduated restraints (geography/SKU/platform) to make relief feel proportionate.
- Speed + compliance: Undertake to expedite hearing; offer security/accounts if needed—this reassures the Bench when crafting interim protection.
- SC readiness: If you win interim relief in appeal, prepare a stay-resistance note grounded in hardship/public interest—Burger King (Pune) shows the SC will recalibrate if equities demand.
Skeptic corner (sparring-partner pushback)
- “Appeals just re-argue facts.” Not if you do it right. You’re pinpointing legal misdirection and ignored principles, which Wander permits the appellate court to correct.
- “Status quo orders are automatic.” They aren’t. You must prove nugatory risk with market-specific evidence; generic harm claims won’t cut it.
- “Global fame will bail us out.” Only if you’ve proved Indian reputation by the relevant date; otherwise you run into territoriality headwinds on appeal too. (Prius logic commonly influences these assessments.)
About the Author
Suresh Kumar, Advocate, is the Managing Attorney at Unimarks Legal Solutions, Chennai. Practising since 2008, he focuses on trademark infringement and passing off, appeals from the Registrar, rectification, and online/platform enforcement before the Madras High Court (IPD), Commercial Courts, and District Courts across Tamil Nadu. He frequently speaks on IP at industrial forums and universities and is associated with SICCI, CII, and the Tamil Nadu Chamber of Commerce.
References: Wander v. Antox (appellate interference standard); Commercial Courts Act s.13 (appealability); Midas Hygiene (delay ≠ defeat); Cadila (overall impression); Burger King (Pune) appellate interim saga (HC restraint; SC stay).
This article is for information and education. It is not legal advice, does not create a lawyer–client relationship, and avoids case-specific recommendations. Conflicts are screened per firm policy before any engagement.
