Delhi High Court Refuses To Restrain City Ayurvedic Drug Maker From Using “NOKUF” For Cough Syrup

The Delhi High Court has refused to stop Dehlvi Remedies Private Limited, an city based Ayurvedic drug maker, from using the mark “NOKUF” for cough syrups, holding that its use of the mark since 1994 defeats a later claim by Sana Herbals Private Limited, which sells its product as “NOKUFSYRUP.”In a judgment delivered on January 5, 2026, a Division Bench of Justices C Hari Shankar and Om Prakash Shukla dismissed Sana Herbals' appeal against an order of the Commercial Court at Tis Hazari that had declined to grant an interim injunction.The court observed that Dehlvi Remedies had been using the mark since 1994, much before Sana Herbals came into existence. This prior use, the Bench held, was fatal to Sana Herbals' plea for interim relief.Sana Herbals relied on a trademark registration granted in May 2015 and an assignment deed dated September 1999 to assert ownership. It also claimed that Dehlvi Remedies had abandoned the mark due to non-use. Dehlvi Remedies countered that it had continuously asserted rights over the mark and relied on its trademark registration from June 1996. It also challenged the validity of the assignment deed relied upon by Sana Herbals.At the outset, referring to the Supreme Court ruling in S. Syed Mohideen v. P. Sulochana Bai, the Division Bench observed that no action for trademark infringement could be maintained against Dehlvi Remedies, as “NOKUF” is a registered trademark in its favour. The court clarified that while an infringement action is barred in such circumstances, a claim of passing off may still be examined. Examining the issue of passing off, the Court noted that Sana Herbals had not challenged Dehlvi Remedies' use of the mark during the period from 1994 to 1999. It observed that, “What is relevant, for the purposes of Section 34, or for the purposes of ensuring whether the mark of the defendant can be injuncted in a passing off action, is user by the defendant, irrespective of whether it is sporadic or continuous.”Rejecting Sana Herbals' argument seeking an injunction on the ground that it had acquired goodwill during the period when Dehlvi Remedies did not use the mark, the Court observed, “At the cost of repetition, we emphasize that, to succeed in an action for passing off, the plaintiff has to establish that, prior to adoption of the mark by the defendant, it had accumulated goodwill and reputation, on which the defendant was seeking to ride.”The court also found fault with the assignment deed relied upon by Sana Herbals. It noted that the document did not expressly transfer goodwill. Since it was executed when the Trade and Merchandise Marks Act, 1958 was in force, which did not permit assignment without goodwill, the deed could not be relied upon at the interim stage.On the plea of abandonment, the court held that non-use of a registered mark is a matter for rectification proceedings and cannot be the basis for an interim injunction. The appeal was thus dismissed, and the Commercial Court's refusal to grant interim relief was upheld.Case Title: Sana Herbals Private Limited v. Mohsin Dehlvi & Anr.Citation: 2026 LLBiz HC (DEL) 9Case Number: FAO (COMM) 77/2025For Appellant: Senior Advocate J. Sai Deepak with Advocates M.K. Miglani, R. Abhishek, Amit Tomar and Hardik GogiaFor Respondents: Senior Advocate Swathi Sukumar with Advocates Tanzeela, Ritika Aggarwal, Ritik Raghuwanshi, Shrudula Murthy and Pratibha SinghClick Here To Read/Download Order

Delhi High Court Refuses To Restrain City Ayurvedic Drug Maker From Using “NOKUF” For Cough Syrup

Ayushi Shukla

Tags