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Lotus Herbals Private Limited vs Dpka Universal Consumer Ventures Private Limited & Ors 2026 DHC 1300

Synopsis

This judgment addresses a trademark infringement dispute concerning the use of the mark "Lotus Splash" by the respondents for a face cleanser product, allegedly infringing the appellant's registered trademark "Lotus" and its formative marks in Classes 3 and 5. The core legal controversy revolves around whether the respondents are entitled to the statutory defence under Section 30(2)(a) of the Trade Marks Act, 1999, which protects bona fide descriptive use of a mark indicating the kind, quality, or characteristics of goods. The Division Bench reversed the learned Single Judge's order refusing temporary injunction, holding that the respondents' use of "Lotus Splash" was not merely descriptive but amounted to use as a trademark/sub-brand, thereby infringing the appellant's registered marks. The court granted interim injunction restraining the respondents from using the impugned mark.

Case Analysis:

Lotus Herbals Private Limited vs. Dpka Universal Consumer Ventures Private Limited & Ors.

Citation: 2026:DHC:1300-DB
Court: High Court of Delhi at New Delhi
Coram: Division Bench comprising Hon'ble Mr. Justice V. Kameswar Rao and Hon'ble Mr. Justice Vinod Kumar
Date of Judgment: February 16, 2026
Court Registry: FAO(OS) (COMM) 45/2024

1. Proper Heading of the Judgment

Lotus Herbals Private Limited V. Dpka Universal Consumer Ventures Private Limited & Ors.

Court: High Court of Delhi at New Delhi
Coram: Division Bench: Hon'ble Mr. Justice V. Kameswar Rao and Hon'ble Mr. Justice Vinod Kumar
Judgment Date: February 16, 2026
Appeal: FAO(OS) (COMM) 45/2024 under Order XLIII Rule 1 of the Code of Civil Procedure, 1908

2. Legal Framework

2.1. Principal Legislation

The Trade Marks Act, 1999
Section 2(1)(zb) – Definition of "trade mark"
Section 2(2)(c) – Use of a mark in relation to goods
Section 9(1)(b) – Absolute grounds for refusal – marks devoid of distinctive character
Section 27 – Rights of action for passing off
Section 29 – Infringement of registered trade marks
Section 30(2)(a) – Defence where use indicates kind, quality, quantity, intended purpose, value, geographical origin, time of production, or other characteristics
Section 35 – Defence for bona fide use of name or description of characteristics
Code of Civil Procedure, 1908
Order XXXIX Rules 1 and 2 – Temporary injunctions
Order XLIII Rule 1 – Appeals from orders

2.2. Key Precedents Discussed

Case Principle Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 73Test for likelihood of confusion; average consumer standardAmritdhara Pharmacy v. Satya Deo Gupta 1962 SCC OnLine SC 13Comparison of competing marksKaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceuticals Laboratories 1964 SCC OnLine SC 14Infringement and passing offS. Syed Mohideen v. P. Sulochana Bai (2016) 2 SCC 683Prior user rights superiorHem Corpn. Pvt Ltd. v. ITC Ltd. 2012 SCC OnLine Bom 551Sub-brands as trademarksPiruz Khambata v. Soex India Pvt. Ltd. 2011 SCC OnLine Del 5598Sub-marks and infringementProcter & Gamble Manufacturing v. Anchor Health & Beauty Care 2014 SCC OnLine Del 3374"Day before" test for descriptivenessMoroccanoil Israel Ltd. v. Modicare Ltd. (2022) 6 HCC (Del) 548Prominent use as trademarkGoogle LLC v. DRS Logistics (P) Ltd. 2023 SCC OnLine Del 4809Keyword purchase as use in advertisingPernod Ricard India Pvt. Ltd. v. Karamveer Singh Chhabra 2025 SCC OnLine SC 1701Principles for grant of injunction; Anti-Dissection Rule; Dominant Feature Test

3. Relevant Facts of the Case

3.1. The Appellant (Plaintiff)

Business: Manufacturer and seller of cosmetics, beauty, and hygiene products under the brand "Lotus" since 1993.
Registrations: Owner of 55 registered trademarks in Classes 3 and 5 with the earliest registration dated August 2, 1996.
Goodwill: Sales figures of approximately ₹529 crores (2021-22) and ₹695 crores (2022-23); advertising expenditure of ₹103 crores and ₹98 crores respectively.

3.2. The Respondents (Defendants)

Respondent No. 1: DPKA Universal Consumer Ventures Private Limited – owner of the umbrella brand "82°E" associated with celebrity Respondent No. 2.
Products: Range of skincare products including "Ashwagandha Bounce", "Turmeric Shield", "Licorice Beam", "Gotu Kola Dew", "Patchouli Glow", and the impugned product "Lotus Splash" (face cleanser).

3.3. Chronology of Events

February 6, 2023: Appellant issued legal notice to respondents to stop using "Lotus Splash."
2023: Appellant filed CS (COMM) 454/2023 seeking permanent injunction and filed I.A. 12308/2023 for temporary injunction.
January 25, 2024: Learned Single Judge dismissed the injunction application.
February 16, 2026: Division Bench allowed the appeal and granted temporary injunction.

3.4. Key Factual Findings

Trademark Applications: Respondents applied for registration of marks for other products ("Turmeric Shield," etc.) but NOT for "Lotus Splash."
Invoice dated May 29, 2023: Product sold as "Lotus Splash conditioning cleanser" with no reference to "82°E" except email address.
Google Search: When "lotus face wash" is searched, respondents' product appears as sponsored result – respondents purchased keywords.
Packaging: "Lotus Splash" appears prominently at top of bottle; "82°E" at base; description "conditioning cleanser with lotus and bioflavonoids" below in smaller font.

4. Issues Before the Division Bench

4.1. Primary Issue

Whether the respondents are entitled to the defence under Section 30(2)(a) of the Trade Marks Act, 1999, on the ground that "Lotus Splash" is a descriptive term indicating the kind, quality, or characteristics of the product?

4.2. Subsidiary Issues

Whether the use of "Lotus Splash" amounts to use as a trademark or sub-brand, thereby infringing the appellant's registered mark under Section 29.
Whether the respondents' concealment of their trademark applications for other products affects their bona fides.
Whether the learned Single Judge's findings on likelihood of confusion are consistent with the refusal of injunction.
Whether the balance of convenience and irreparable harm favour grant of temporary injunction.

5. Ratio Decidendi

5.1. Descriptive Use Defence Under Section 30(2)(a)

For the defence under Section 30(2)(a) to apply, the use of the mark must be bona fide descriptive use and not use as a trademark. Where a term is used prominently as a source identifier or sub-brand, it cannot claim protection under the descriptive use exception.

"The words 'Lotus Splash' are being used as a mark and as such cannot be construed as indicative of the quality/characteristic of the product as a face wash/facial cleanser."

5.2. Sub-Brand as Trademark

A sub-brand does not fall outside the ambit of a trademark if it is used as a mark. Reference to it as a sub-brand indicates that it is a brand name/mark.

"All the products including 'Lotus Splash' though appears to be descriptive are in fact being used as a trade mark."

5.3. Inconsistency in Respondents' Conduct

The respondents applied for trademark registration for other similarly situated product names but consciously did not apply for "Lotus Splash." This indicated an attempt to use it as a mark while avoiding registration to maintain the defence of descriptiveness.

5.4. Keyword Purchase as Trademark Use

Purchasing keywords "Lotus Face Wash" to trigger display of respondents' advertisement constitutes use of the mark in advertising, reinforcing that the term is being used in a trademark sense.

5.5. Prominent Display Over Umbrella Mark

Where "Lotus Splash" is displayed more prominently than the umbrella mark "82°E," it indicates intent to use it as a trademark.

5.6. Descriptive Element Already Present

The product already contains a clearly descriptive phrase – "conditioning cleanser with lotus and bioflavonoids" – written in smaller font. This renders the argument that "Lotus Splash" itself is descriptive untenable.

5.7. Prior User Rights

Prior user rights are superior, and registration merely recognises pre-existing common law rights. The appellant has used the mark since 1993 with registrations since 1996.

5.8. Initial Interest Confusion

The word "Lotus" being common to both marks shall cause initial interest confusion – confusion at a preliminary stage prior to purchase – which is sufficient to meet the requirement of "deceptively similar" under Section 29.

5.9. Inconsistent Findings of Learned Single Judge

Once a finding of likelihood of confusion and prima facie infringement is recorded, an injunction ought to follow. Giving respondents benefit under Section 30(2)(a) in such circumstances is erroneous.

6. Legal Principles Established

6.1. Distinction Between Descriptive Use and Trademark Use

Mere presence of an ingredient name does not automatically entitle the user to the descriptive use defence. The court must examine:

Manner of use – prominence, placement, font size
Whether the term is used consistently across a product line as a sub-brand
Whether the user has applied for registration of similar terms for other products
Whether the product already contains a separate descriptive legend

6.2. Sub-Brands Are Trademarks

A sub-brand used in a manner that identifies and distinguishes goods is a trademark, even if used alongside an umbrella mark.

6.3. Conduct Relevant at Interim Stage

Suppression of material facts and inconsistency in conduct are relevant considerations at the interim stage, affecting the bona fides of the party seeking statutory defences.

6.4. Keyword Purchase as Trademark Use

Purchasing a competitor's trademark as a keyword constitutes use of the mark "in advertising" and is relevant evidence of trademark use.

6.5. "Day Before" Test for Descriptiveness

The test for descriptiveness is whether the term was descriptive before its first use in relation to the goods, not whether it has become associated after prolonged use.

6.6. Initial Interest Confusion Sufficient

Confusion at the initial stage of consumer interest, before detailed examination, is sufficient to establish deceptive similarity under Section 29.

7. Court's Analysis and Examination

7.1. Examination of Respondents' Own Pleadings

Paragraphs 20-24 of the respondents' written statement referred to "Lotus Splash" as a mark and described other products as "sub-brands" under "82°E."

7.2. Analysis of Invoice and Google Searches

Invoice dated 29.05.2023: Product sold as "Lotus Splash conditioning cleanser"; no reference to "82°E" except email.
Google search for "lotus face wash": Respondents' product appears as first sponsored result.
Keyword purchase: Respondents purchased "Lotus Face Wash" as keyword – use in advertising.

7.3. Analysis of the "Descriptive" Argument

The court applied a multi-factor test:

Degree of Imagination Required: Some imagination required to connect "Lotus Splash" with a face wash.
Competitors' Need: Competitors can describe lotus content without using "Lotus Splash" as a mark.
Actual Use: Separate descriptor "conditioning cleanser with lotus" shows descriptive function already served.
Consistency Across Line: Other products treated as marks (applications filed for registration).

7.4. Rejection of Reliance on Marico and Cadila (Sugar Free)

Distinguished on facts – in those cases, terms were held descriptive and not used as marks. Here, "Lotus Splash" is used as a mark/sub-brand, prominently displayed, with separate descriptor existing.

7.5. Application of Anti-Dissection Rule

The court acknowledged the anti-dissection rule but applied the dominant feature test. The word "Lotus" being the dominant and common feature, its use creates initial interest confusion.

7.6. Prima Facie Findings

Appellant is prior user and registered proprietor.
Respondents' mark "Lotus Splash" is deceptively similar.
Goods are identical/similar.
Likelihood of confusion exists.
Respondents' use is not bona fide descriptive use but use as trademark.
Section 30(2)(a) defence not available.
Balance of convenience favours appellant.
Irreparable harm would be caused if injunction refused.

8. Critical Analysis of the Judgment

8.1. Strengths

Comprehensive Analysis: The judgment provides a detailed framework for analysing claims of descriptive use under Section 30(2)(a), examining multiple factors – prominence of use, existence of separate descriptor, registration applications, keyword purchases, and overall context.

Protection of Prior User Rights: Strongly reinforces the principle that prior user rights are superior and registered proprietors are entitled to protection against subsequent users.

Recognition of Modern Marketing Realities: Treats keyword purchases as use in advertising and recognises initial interest confusion in online searches, adapting trademark law to e-commerce realities.

Emphasis on Bona Fides: Focus on respondents' conduct – applying for registration of other marks but not "Lotus Splash" – highlights that equitable relief depends on bona fides.

Protection Against Dilution: Recognises that allowing use could lead to dilution of the well-known mark "Lotus" and encourage other third parties to use formative marks under garb of descriptive use.

8.2. Potential Concerns

Prima Facie Nature: Detailed reasoning on merits may influence final adjudication; line between prima facie assessment and final determination is blurred.

Limited Discussion on Common Word: "Lotus" is a common English word; more detailed analysis of how common words acquire distinctiveness could have strengthened reasoning.

Treatment of Other Products: Reliance on respondents having applied for registration of other product names may be of limited relevance as those marks are not in dispute.

Potential Chilling Effect: Strict approach may discourage businesses from using ingredient names in product descriptions, even where genuinely descriptive.

No Discussion on Honest Concurrent User: Does not consider other possible defences under Sections 12 or 33.

8.3. Broader Implications

For Trademark Owners: Provides strong protection against subsequent users claiming descriptiveness while using mark in trademark sense.

For New Entrants: Must exercise caution when using common words or ingredient names that may be registered by competitors.

For E-Commerce Platforms: Recognition of keyword purchases as trademark use has implications for keyword bidding on trademarked terms.

For Section 30(2)(a) Jurisprudence: Multi-factor test provides useful framework for future cases involving descriptive use defence.

9. Final Outcome

The Division Bench:

Allowed the appeal filed by Lotus Herbals Private Limited.
Set aside the impugned order dated January 25, 2024 passed by the learned Single Judge.
Allowed I.A. 12308/2023 under Order XXXIX Rules 1 and 2 CPC.
Granted temporary injunction restraining the respondents, their directors, partners, dealers, distributors, agents, and all persons acting on their behalf from manufacturing, selling, importing, exporting, offering for sale, advertising, directly or indirectly dealing in Cosmetics, Beauty and Hygiene products under the impugned trade mark "Lotus Splash" or "Lotus" derivative marks or any other identical and/or deceptively similar trade marks to that of the appellant's trade mark "Lotus."
Clarified that findings are of a prima facie nature and shall not have any bearing on the final outcome of the suit.
Disposed of CM APPL. 14991/2024 as having become infructuous.