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In a case where the appellant/plaintiff had been using the mark 'Lotus' for various cosmetics and hygiene products, while the defendant was using the mark 'Lotus Splash' for face cleanser, the Delhi High Court has set aside the rejection of the application for interim relief. Allowing the appeal, the Court was of the view that the respondent was not entitled to the defence available under Sections 30(2)(a) and 35 of the Trade Marks Act, 1999.
The Court in Lotus Herbals Private Limited v. DPKA Universal Consumer Ventures Private Limited & Ors. [Judgement dated 16 February 2026] noted the following:
- Clear indication in the written statements of the respondent that the words 'Lotus Splash' was referred to as trademark.
- Word/mark 'Lotus Splash' is similar / identical and at par with the other products of the respondents as a sub-mark under the umbrella mark '82°E'.
- Product sold as 'Lotus Splash' and not under the marquee brand of '82° E', the latter not fulfilling the function of being source identifier. Invoice also relied for this purpose.
- Trademark '82°E' of the respondents is at the base of the bottle as against the mark/phrase 'Lotus Splash', which occupies a more prominent place at the top of the bottle.
- Keywords 'Lotus Face Wash' purchased by the respondent to array itself as the first among the sponsored results on the Google search results page, thus 'Lotus' was used a trademark.
- Words 'Lotus Splash' cannot be construed as indicative of the quality/characteristic of the product.
- 'Lotus Splash' accompanied by the phrase 'conditioning cleanser with lotus and bioflavonoids' in smaller font, thus depicting that the descriptive character of the product is not 'Lotus Splash' but the accompanying phrase.
- Respondent is entitled to use the term 'Lotus' as a descriptor but not in the manner that it has being projected as a sub-mark.
- Appellant is a prior user with a registration as compared to the respondent who is subsequent non-registered user.
- Marks 'Lotus' of the appellant and 'Lotus Splash' of the defendants are used for cosmetic preparation such as facewash and there is likelihood of confusion, as found by the Single Bench.
- Appellant entitled to protection under Section 29 and the exception as contemplated under Section 30(2)(a) would not be applicable.
An article examining the Single Bench decision, wherein the LKS Trademarks Litigation Team had raised various pertinent questions on the SB decision, is available here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
