Delhi High Court Denies Plea to Sell 'OLD FORESTER' Whiskey Seized For Trademark Infringement, Terms It Counterfeit

The Delhi High Court has refused to permit the sale of seized whiskey stocks bearing the trademark “OLD FORESTER”, holding that goods found in violation of trademark rights fall within the definition of “counterfeit liquor” under excise law.

In an order delivered on April 2, 2026, Justice Tushar Rao Gedela dismissed an application by Brewholik Private Limited seeking to release 3,464 boxes of seized inventory and complete the importation of an additional 2,600 boxes to fulfill government contracts.

The court observed that it cannot countenance a situation where a “clever importer” is entitled to earn profits on goods that infringe a trademark registered in India. It also noted the plaintiff's contention that permitting such sales would amount to a “premium to illegal acts.”

Brewholik Private Limited (the Defendant) filed this application in a trademark infringement suit under Section 151 of the CPC against Brown-Forman Distillery, Inc., seeking permission to sell 3,464 boxes of seized whiskey and complete the importation of 2,600 additional boxes bearing the “OLD FORESTER” mark.

The company sought this relief to fulfill contractual supply obligations with the Delhi Government and avoid penalties or blacklisting, claiming the goods were lawfully imported from a Nepalese entity, Yeti Distillery (P.) Ltd., which owns the mark in Nepal.

They argued that the products were merely “infringing” rather than “counterfeit” and offered to deposit Rs 25–30 lakh as security.

However, the High Court dismissed the request, holding that liquor infringing trademark rights is covered by the definition of “counterfeit liquor”, and permitting its sale would be contrary to statutory provisions when read with the Trade Marks Act and the Delhi Excise Act.

Brown-Forman Distillery, Inc., on the other hand, contended that it is the registered proprietor of over 100 registrations for the mark “OLD FORESTER”. The plaintiff stated that it discovered the defendant's unauthorized sales in Delhi liquor stores in December 2025, which led to an ex-parte ad-interim injunction and the judicial seizure of the products by a Local Commissioner.

The plaintiff argued that under Section 29(6)(c) of the Trade Marks Act, the act of importing goods under a registered mark without consent constitutes infringement. It further contended that such goods must be treated as “counterfeit” when the provisions of the Trade Marks Act are read together with the Delhi Excise Act, 2009.

Evaluating these submissions, the Court held that Section 2(16) of the Excise Act contains no qualification as to the nature of the liquor and that any liquor found in violation of rights under the Trade Marks Act would be termed “counterfeit liquor”.

Rejecting the infringer's reliance on precedents involving the release of pharmaceutical products, the Court held such reliance to be misplaced, noting that the present case did not involve considerations of public interest of the kind applicable to medicinal products.

The court also reiterated that inherent powers under Section 151 of the CPC cannot be exercised to override express statutory provisions.

Accordingly, the court dismissed the application, observing that permitting the sale of the seized goods would be violative of the statutory scheme.