2026 Supreme(Bom) 284

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDEEP V. MARNE, J.
Elder Neutraciticals Private Limited – Appellant
Versus
Elder Neutraciticals Private Limited – Respondent
Interim Application (L) Nos. 27598, 35091 of 2025, Commercial IP Suit (L) No. 27106 of 2025
Decided On : 09-03-2026

Ex-parte ad-interim injunction vacated for suppression of material facts in trademark infringement suit; plaintiff must disclose fully prior ownership, adverse orders, relationships with clean hands; infringer cannot sue junior user.

Headnote:(A) Code of Civil Procedure, 1908 - Order XXXIX Rules 1, 2, 3, 4 - Trade Marks Act, 1999 - Ex-parte ad-interim injunction in suit for infringement of registered device mark and passing off vacated due to gross suppression of material facts including prior registration and use of word mark by liquidated pharmaceutical company since 1983, familial relationship between directors and their prior association with liquidated company, four adverse orders by another High Court denying relief on word mark claims, proceedings by official liquidator questioning unauthorized use; plaintiff misrepresented itself as coiner and exclusive prior user since 1992-93 while admitting being contract manufacturer till 2016, failed to disclose with clean hands, false urgency claimed despite defendant's use since 2015. (Paras 24-68)

(B) Temporary Injunction - Ex-parte applications - Duty of full and fair disclosure of all material facts anticipated to influence decision; non-disclosure warrants immediate vacation without merits consideration as faith of court broken; material facts include likely defences, related proceedings, public records; changed oral stance contradicting pleadings cannot cure suppression. (Paras 42-61)

(C) Trade Marks - Infringement and Passing Off - Plaintiff as prima facie infringer of senior mark cannot sue junior user; contract manufacturer gains no independent rights post-liquidation; registration does not preclude scrutiny at interim stage if obtained by misrepresentation; claim of prior use falsified by admissions; irreparable injury and balance of convenience against plaintiff. (Paras 69-78)

Facts of the case:
Plaintiff, manufacturer of pharmaceuticals, claimed registration of device mark with stylized word and three leaves used since 1992-93, sued defendant for infringement upon noticing similar mark in May 2025, secured ex-parte ad-interim injunction and receiver appointment on 26 September 2025 alleging defeat by delay; defendant applied for vacation under Order XXXIX Rule 4 alleging suppression.

Findings of Court:
Ad-interim injunction vacated, temporary injunction application dismissed, receiver discharged, seized goods returned to defendant, costs of Rs.1,00,000/- imposed on plaintiff.

Issues: Whether plaintiff suppressed material facts warranting vacation of ex-parte injunction; whether prima facie case, irreparable injury and balance of convenience established for temporary injunction.

Ratio Decidendi: Equitable relief denied to party not approaching with clean hands; suppression of facts materially affecting injunction entitlement, including prior ownership, adverse rulings, relationships, leads to vacation; plaintiff must disclose whole case fully; contradictory stands across proceedings fatal; infringer cannot restrain another.

Result: Defendant's application allowed; plaintiff's dismissed.

Table of Content
1. plaintiff claims prior use and registration of elder device mark. (Para 1 , 2 , 4 , 5 , 6)
2. suppression of epl prior rights and orders warrants injunction vacation. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15)
3. registered proprietor entitled to injunction despite defendant's prior claims. (Para 16 , 17 , 18 , 19 , 20 , 21)
4. ex-parte injunction requires full material fact disclosure. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28)
5. epl's prior elder ownership and family ties suppressed. (Para 29 , 30 , 31 , 32 , 33 , 34)
6. delhi hc orders denying elder rights deliberately concealed. (Para 35 , 36 , 37 , 38)
7. ol proceedings on unauthorized elder use omitted. (Para 39 , 40 , 41)
8. clean hands doctrine mandates vacating injunction for suppression. (Para 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53)
9. oral claims contradict plaint on elder word mark rights. (Para 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61)
10. contradictory stands across proceedings show bad faith. (Para 62 , 63 , 64 , 65 , 66 , 67)
11. plaintiff as infringer lacks prima facie case or prior use. (Para 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78)
12. vacate injunction, dismiss application, impose costs. (Para 79 , 80 , 81 , 82 , 83)

JUDGMENT :

SANDEEP V. MARNE, J.

1. This is an action by the Plaintiff complaining of infringement and passing off in respect of its registered trademark used by it for manufacture and sale of its pharmaceutical and medicinal products. It is Plaintiff’s case that the Defendant’s markis identical with and/or deceptively similar to the Plaintiff’s mark and that the Defendant is using the impugned mark in respect of identical goods. In its Suit, Plaintiff filed application for temporary injunction. On 26 September 2025, the Plaintiff persuaded this Court to pass an ex-parte ad-interim injunction in its favour inter alia restraining the Defendant from using the mark or any other deceptively similar mark containing the word ELDER. This Court also appointed Court Receiver for sezuire of goods of the Defendant. Upon being served with ex-parte ad-interim injunction order, the Defendant has filed Interim Application (L) No.35091 of 2025 seeking vacation of the ex-parte ad-interim injunction order dated 26 September 2025 under Order 39 Rule 4 of the Code of the Civil Procedure, 1908 (the Code) With the consent of parties, Defendant’s application for vacation of ad- interim injunction and Plaintiff’s application for temporary injunction are taken up for hearing together.

FACTS

2. Plaintiff’s pleaded case in the Plaint is that it was originally incorporated under the Companies Act, 1956 in the name as ‘Kenex Projects Limited’ on 4 July 1985. The name of the Company was changed from ‘Kenex Projects Limited’ to ‘Elder Projects Limited’ on 16 September 1992. The registered office of the Company was also changed from Shillong to Mumbai. On 16 August 2022, Plaintiff has changed its name from ‘Elder Projects Limited’ to ‘ELDER Prrojects Limited’. The Plaintiff is in the business of manufacturing, selling and trading of range of medicines, ointments, eye drops, etc. since 1992-93. Plaintiff claims use of the device mark since 1992-93. According to the Plaintiff, the trademark has achieved significant goodwill and popularity with products sold in Class-5 specially medicines, ointments, eye drops, etc. Plaintiff claims to have coined the mark and has been using the same without any objections or interruptions. Plaintiff also claims itself to be a prior user of the mark.

3. The Plaintiff applied for registration of the mark on 31 August 2018 in Class 5 of the Trade Marks Act, 1999 (Trade Marks Act). The Application was allowed on 12 June 2024 and thereafter Plaintiff’s trade mark has been registered. Plaintiff also applied for registration of copyright for the label and the registration certificate dated 5 February 2020 has been issued in its name.

4. Plaintiff claims that in May 2025, its distributors brought to its notice Defendant’s

Click Here to Read the rest of this document