One Pirator Cannot Sue Another: Bombay High Court Refuses Interim Relief In ‘ELDER’ Trademark Dispute, Imposes ₹1 Lakh Costs

On 26-09-2025, the Court had passed an ex parte ad-interim order granting temporary protection in favour of the plaintiff, restraining the defendant from using the impugned mark. The order was passed at the initial stage of the proceedings when the defendant had not yet appeared before the Court. However, after the defendant entered appearance and contested the matter, the Court examined the record more closely and found that the plaintiff had failed to disclose material facts regarding the ownership of the mark “ELDER”, which was in fact registered in the name of Elder Pharmaceuticals Ltd. (EPL).

Upon reconsideration, the Court held that the plaintiff had obtained the ex parte ad-interim relief without making full and fair disclosure, despite itself being a prima facie infringer of EPL’s mark. Consequently, the Court vacated the earlier ex parte order dated 26-09-2025 and imposed costs of ₹1,00,000 on the plaintiff for securing the interim relief in such circumstances.

Justice Sandeep V. Marne in the interim application, observed, “Independent of factor of suppression, Plaintiff otherwise has failed to make out any prima facie case for grant of temporary injunction. It has raised inconsistent pleas before various fora. It was merely a contract manufacturer for EPL and appears to be an infringer of EPL’s trademark after its liquidation. It is seen that Plaintiff has dissociated itself from EPL’s trademark ‘ELDER’ on multiple occasions and particularly before the OL. However, when it comes to third parties, it has claimed rights in respect of EPL’s mark ‘ELDER’. In the present case, Plaintiff’s is once again seeking to enforce EPL’s mark by adding different colour to the same stylized mark and by adding three leaves to the logo. However, even the font used by the Plaintiff in the mark is found to be similar to the one used by EPL. Plaintiff has adopted the false plea of selling medicinal and pharmaceutical products under the trademark since 1992-93. It has failed to satisfy the classic trinity test of reputation/goodwill, misrepresentation and damage. The conduct of the Plaintiff is otherwise such that it is not entitled to claim any equitable relief from this Court. Plaintiff has thus failed to make out any case for grant of temporary injunction”.

The Court reiterated the settled principle that a plaintiff who is itself a pirator cannot seek relief for infringement against another party. The Court noted that the word “ELDER” is a registered trademark of Elder Pharmaceuticals Ltd. (EPL), and the plaintiff admitted that it had earlier attempted to enforce rights over the same mark before the Court.

It noted that after failing in those attempts, the plaintiff tried to claim rights over a stylized version of the mark by merely changing the colour and adding a three-leaf logo while copying the same font used by EPL. Since the stylized mark had also been used by EPL, the Court found a prima facie case that the plaintiff itself was a pirator and infringer of EPL’s mark, and therefore could not maintain an action alleging infringement against the defendant.

Advocate Bhupesh Dhumatkar appeared for the plaintiff, Advocate Nihit Nagpal appeared for the defendant.

In the matter, a commercial intellectual property suit was filed by Elder Projects Limited against Elder Nutraceuticals Private Limited, alleging infringement and passing off in relation to the trademark “ELDER” used for pharmaceutical and nutraceutical products.

The plaintiff claimed that it had been using the mark “ELDER” for several decades and that the defendant’s use of a deceptively similar mark caused confusion in the market. On this basis, it sought an injunction restraining the defendant from using the mark or any deceptively similar variant.

After examining the record, the Court found several inconsistencies in the plaintiff’s claim of ownership and prior use. It noted that the goodwill associated with the “ELDER” mark was historically linked to Elder Pharmaceuticals Limited, which had been using the mark since the 1980s. The Court also observed that the plaintiff had attempted to assert rights over the mark only much later and had previously distanced itself from the trademarks of the original company.

“Plaintiff’s act of applying for and securing ex-parte ad interim injunction by deliberately withholding the relevant material from Court has undoubtedly led to immense inconvenience and losses for the Defendant. Apart from cause of inconvenience and loss to Defendant due to acts of Plaintiff, this Court cannot remain a mute spectator to Plaintiff’s acts of suppression and misrepresentation. Therefore this Court would have been justified in imposing exemplary costs on the Plaintiff. However as of now, it is not known as to whether Defendant’s use of the mark is also valid or not. Afterall ‘ELDER’ is the proprietary mark of EPL and the siblings have adopted different versions thereof”, the Bench further noted.

The Court on finding that the plaintiff had not established a prima facie case for infringement or passing off, declined to continue the interim injunction earlier granted, and discharged the Court Receiver.

Cause Title: Elder Projects Limited v. Elder Nutraceuticals Private Limited, Interim Application No. 35091 of 2025 in Commercial IP Suit No. 27106 of 2025 [Neutral Citation: 2026:BHC-OS:6101]

Appearances:

Plaintiff: Bhupesh Dhumatkar, Rohit Pandey & Bhavin Shah i/b Dinesh Dubey, Advocates.

Defendant: Nihit Nagpal, Nisha Kaba, Abhijit Singh, Anees Patel & Areen Shaikh, Advocates.

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