FAO (OS) (COMM) 45/2024 Page 1 of 59

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 18.12.2025

Judgment delivered on: 16.02.2026

Judgment uploaded on: As per Digital Signature

+ FAO(OS) (COMM) 45/2024

LOTUS HERBALS PRIVATE LIMITED

..... APPELLANT

versus

DPKA UNIVERSAL CONSUMER VENTURES

PRIVATE LIMITED & ORS

..... RESPONDENTS

Advocates who appeared in this case

For the Appellant: Mr. Chander M. Lall, Senior Advocate with

Mr. Vaibhav Vutts, Ms. Aamna Hasan, Ms.

Aarya Deshmukh and Ms. Vaibhavi SG,

Ms. Annanya Mehan, Advocates.

For the Respondents : Mr. Dayan Krishnan, Senior Advocate with

Mr. Pravin Anand, Mr. Ameet Naik, Mr.

Dhruv Anand, Ms. Madhu Chaudhary,

Ms. Udita Patra, Mr. Sanjeevi Seshadri,

Ms. Nimrat Singh, Mr. Dhananjay Khanna,

Ms. Bhavya Verma, Advocates for R1 &

R2.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

HON'BLE MR. JUSTICE VINOD KUMAR

JUDGMENT

V. KAMESWAR RAO, J.

FAO (OS) (COMM) 45/2024 Page 2 of 59

CM APPL. 25782/2024(condonation of delay in filing reply to the

present appeal)

1.For the reasons stated in the application, the delay of 35 days in filing

reply of the respondents in compliance of order dated 12.03.2024, is

condoned.

2.The application is disposed of.

CM APPL. 25783/2024

3.For the reasons stated in the application, we allow this application and

treat their reply to the appeal as their counter affidavit which was directed

vide order dated 12.03.2024.

4.The application is allowed and disposed of.

FAO(OS) (COMM) 45/2024 CM APPL. 14991/2024

5.This appeal has been filed with the following prayers:-

“a) Set aside the impugned order dated 25.01.2024 and that

during the pendency of the suit the Hon'ble Court may be

pleased to pass the order restraining the defendants, their

directors, partners, owners, dealers, distributors, agents,

stockiest and servants, employees, assigns and all other

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 plaintiffs trade mark being

LOTUS whether being used independently or with any prefix or

suffix till the disposal of the suit.

b) Any such further order as this Court may deem fit and

appropriate in the present facts and circumstances of the

present case be passed in favour of the Appellant and against

the Respondents.”

FAO (OS) (COMM) 45/2024 Page 3 of 59

6.This appeal impugns order dated 25.01.2024 passed by the learned

Single Judge dismissing I.A. 12308/2023 under Order XXXIX Rules 1 and 2

of the Code of Civil Procedure, 1908 (CPC) in the suit CS (COMM)

454/2023. The appellant/plaintiff being aggrieved by the dismissal of the

said application has preferred this appeal.

7.We also note that vide Order dated 11.12.2025 this Court had allowed

an application for deletion of M/s. Intercos India Pvt. Ltd. as respondent

no.3 from the array of parties while recording the concurrence of the counsel

for the appellant on instructions.

FACTUAL BACKGROUND

8.The facts as noted from the impugned judgment state that the

appellant is the owner and proprietor of the mark “Lotus” and has

registrations in classes 3 and 5 with 55 registered trade marks with various

designs and devices with the earliest trade mark, registration going back to

02.08.1996. They are also registered owners of a copyright in the logo of the

company, registered with Registration No. A-97661/2013, with effect from

10.02.2011. As per the appellant/plaintiff they have a significant amount of

goodwill and reputation in the market with sales figures for the years 2021-

22 and 2022-23 crossing the figure of approximately Rs. 529croresand Rs.

695crores, respectively. The appellant has also spent significant amounts on

advertising and promotion with expenditure ranging for approximately Rs.

103croresand Rs. 98croresfor the years 2021-22 and 2022-23

respectively. The appellant who is the owner and operator of the said mark

runs a website being www.lotusherbals.com. As per the appellant they have

also been sponsors of various events and programs including the sponsors of

FAO (OS) (COMM) 45/2024 Page 4 of 59

the IPL Cricket Team Kings XI Punjab for the period 2017-23. The details

of the registered marks of the appellant are as under:-

FAO (OS) (COMM) 45/2024 Page 5 of 59

FAO (OS) (COMM) 45/2024 Page 6 of 59

FAO (OS) (COMM) 45/2024 Page 7 of 59

FAO (OS) (COMM) 45/2024 Page 8 of 59

9.In the present case the appellant is aggrieved by the usage of the

words “Lotus Splash” (as alleged by the respondents) by the respondents for

their product which is a face cleanser. As per the appellant the use of the

term “Lotus Splash” by the respondents would amount to infringement of

the appellant’s formative mark under the Trade Marks Act, 1999 (the Act).

The products of the respondents are being sold in physical stores as well as

online through the website www.82e.com under the umbrella mark “82°E”.

FAO (OS) (COMM) 45/2024 Page 9 of 59

The appellant had issued a notice to the respondents dated 06.02.2023

asking the respondents to stop using the mark “Lotus Splash” for its

products. The product of the respondents/defendants, which is a facial

cleanser/face wash is depicted below:-

10.It was thereafter, that the appellant instituted the suit against the

respondents seeking permanent injunction in order to prevent the

respondents from using “Lotus” as a part of their mark. Along with the said

suit the appellant also filed an application under Order XXXIX Rule 1 and 2

of the CPC. The learned Single Judge dismissed the application for

temporary injunction filed by the appellant/plaintiff in favor of the

respondents/defendants vide the impugned judgment dated 25.01.2024.

11.We deem it appropriate to refer to the arguments advanced by the

parties before the learned Single Judge which can be summarised as under:-

a)The respondents, as per the case of the appellant were using the

mark “Lotus” in conjunction with the word “Splash” for similar

products which are bound to cause confusion in the minds of

the general public.

b)It was the case of the appellant that the respondents were aware

FAO (OS) (COMM) 45/2024 Page 10 of 59

of the appellant’s mark “Lotus” and even then went on to use

the same for their own products.

c)The products of the parties for the sake of analogy are depicted

below:-

Product of appellant/

plaintiff

Product of respondent no.

1/ defendant no. 1

d)They argued that the respondents/defendants being proprietors

of the brand “82°E”, sell many products such as “Ashwagandha

Bounce”, “Turmeric Shield”, “Licorice Beam”, “Gotu Kola

Dew”, “Patchouli Glow” along with the product in question

being “Lotus Splash”.

FAO (OS) (COMM) 45/2024 Page 11 of 59

e)As per the appellant the respondents have applied for

registration of trade marks for the other products but not for

“Lotus Splash”.

f)The respondents had concealed the fact that the respondents

had in fact applied for registration of their marks

“Ashwagandha Bounce”, “Turmeric Shield”, “Licorice Beam”,

“Gotu Kola Dew” and “Patchouli Glow”. The list of the

products of the respondents is as under:-

g)The appellant/plaintiff stated that even if one were to examine

the product of the respondents/defendants it would be clear that

the term “Lotus Splash” is used as a trade mark and the mark of

the respondents/defendants “82°E” finds mention at the base of

the bottle. The descriptive part of the product which states

FAO (OS) (COMM) 45/2024 Page 12 of 59

“conditioning cleanser with lotus and bioflavonoids” also finds

mention on the bottle. They also referred to an invoice dated

29.05.2023 to state that the impugned product is sold as “Lotus

Splash conditioning cleanser” and there is no reference to

“82°E”.

h)On the aspect of confusion the appellant/plaintiff stated that

when a Google search is conducted for the term “Lotus” both

the products of the appellant/plaintiff and respondents/

defendants are to be seen. On the Instagram page of the

respondents/defendants it could be seen that the impugned

product was being sold as “Lotus Splash”.

i)The stand of the appellant/plaintiff was that the only aspect

which may be treated as descriptive would only be the term

“Lotus” and the mark in the present case cannot be protected

under Section 30(2)(a). The tests which decide whether a mark

is descriptive or suggestive is the degree of imagination

required to connect the mark with the product and the

competitor’s need to use the mark. It was contended that the

words used in Section 30(2)(a) are the same as in Section

9(1)(b) and therefore, if the argument of the

respondents/defendants is accepted then they would be able to

register “Lotus Splash” as a trade mark by claiming that the

same has acquired reputation and secondary meaning over time.

j)The respondents/defendants have maintained that the use of the

FAO (OS) (COMM) 45/2024 Page 13 of 59

term “Lotus Splash” in a descriptive sense of the words, since

the product of the respondents/defendants contains lotus

extracts and is indicative of its constituents.

k)The case of the respondents/defendants was also that the

advertisement of the product clearly indicates that the product

contains lotus extracts and hence the term “Lotus Splash” is an

indication of the same and thereby the protection of Section 35

of the Act, should also the applicable to the respondents/

defendants.

l)Even if the product of the respondents/defendants were

registered as a trade mark even then there could not be an

estoppel against the respondents/defendants in the present case.

m)The appellant/plaintiff maintained that the mark “Lotus Splash”

cannot be regarded as descriptive but at the highest level is

suggestive and thereby does not entitle the respondents for

benefits under Section 30(2)(a); as according to them the face

wash is not required to contain lotus and for the consumer, the

point of reference is the name of the mark and not its

ingredients.

n)On the issue of concealment of fact that the

respondents/defendants had in fact applied for registration of

trade marks for their products “Patchouli Glow”, “Turmeric

Shield” and “Licorice Beam”, the defendants/respondents

stated that the same was an error committed by their advocates

FAO (OS) (COMM) 45/2024 Page 14 of 59

while filing the said affidavit. Since they had applied for

registration of the said marks they could not take a stand that

the term “Lotus Splash” is a descriptive phrase.

o)The placing of the term “Lotus Splash”vis-a-vis“82°E” on the

packaging would show that prominence is being given to the

former, as a mark and there would be a high probability of

initial interest confusion in the mind of the average consumer.

12.The learned Single Judge in the impugned judgment while dismissing

the application under Order XXXIX Rule 1 and 2 of the CPC by the

appellant/plaintiff has held as under:-

I.The fundamental pre-requisites of Section 29 stood satisfied.

The appellant/plaintiff does not possess registration for the

mark “Lotus Splash” among its registered trade marks. The

impugned judgment deals with the case of the

appellant/plaintiff under Section 29 as well as its sub-sections.

The impugned judgment while analysing the case of the

appellant/plaintiff noted that the present case could be

narrowed down to the applicability of Section 29(2)(b) of the

Act.

II.The triple test required to return a finding of infringement

within the meaning of Section 29(2)(b) states; firstly, the rival

marks must be similar; secondly, they must be used in respect

of similar or identical products or services and; thirdly,

whether the combination of the above two factors creates a

FAO (OS) (COMM) 45/2024 Page 15 of 59

likelihood of confusion in the mind of the average consumer

believing that there is an association between the marks. The

impugned judgment notes that the mark “Lotus Splash” is

covered under this test. The term “Lotus” forms the dominant

part of the mark “Lotus Splash” which would lead the average

consumer to form an association or a link between the mark of

the appellant/plaintiff and that of the respondents/defendants.

The Court was of the view that there is bound to be confusion

in the mind of the average consumer at least at an initial

impression especially since both the marks predominantly

feature the term “Lotus”. Further it was held that since the

appellant/plaintiff had a registration in the entire mark which is

contained in the name of the defendants/respondents there

would be a clear possibility of confusion which may not be

mitigated by the surviving differences. The Court was of the

view that there was aprima facielikelihood of confusion in the

present case.

III.On the aspect of whether the said infringement falls under the

exemption of Section 30(2)(a) or not, the learned Single Judge

was of the opinion that the wording of Section 30(2) was to be

read in a manner that the term “indicates” along with the

phrase “or other characteristics of goods or services” would

mean that this was a reference to a particular aspect of goods

or services. Therefore, if a registered mark is used by a third

party in such a manner that the use indicates the kind, quality,

FAO (OS) (COMM) 45/2024 Page 16 of 59

quantity, intended purpose, value, geographical origin, time of

production of goods or of rendering of services or other

characteristics of the goods, the same would be covered under

Section 30(2)(a).

IV.The learned Single Judge did not agree with the submission that

the test of degree of imagination and competitor’s need would

not be attracted. The learned Single Judge was of the view that

the Trade Marks Act, 1999 was a self contained codified

statute. The impugned judgment held that the scope of the

word ‘indicate’ can be narrowed down in a manner that

exhibits the absence of any other indication to the contrary in

the Act and the same has to be read in its full scope and effect.

V.It has been noted in the impugned judgment that the defendant

has the option of taking the defence as per Section 30(2)(a) to

state that the impugned mark is only indicative of one or more

of the features as indicated in the abovementioned section and

the same would not be seen as an infringement of the mark.

Although, the same has to be adjudicated by examining the

mark vis-à-vis the goods or services in respect of which it is

being used. The learned Single Judge commented that the

competitor’s need test or the degree of imagination test, may

be helpful but it is not necessary for the Courts to take recourse

to the same.

VI.On the issue of suppression of material facts by the

FAO (OS) (COMM) 45/2024 Page 17 of 59

respondents/defendants regarding the registration of the marks

for the other products is concerned, the learned Single Judge

held that the present dispute did not concern the said

products/marks being “Licorice Beam”, “Turmeric Shield”,

“Gotu Kola Dew”, etc., and the dispute pertains to the mark

“Lotus Splash” and since the respondents/defendants have not

applied for a registration of the said mark, there could not have

been any estoppel against invoking the defence under Section

30(2)(a) of the Act.

VII.The learned Single Judge came to the conclusion that the term

“Lotus Splash” clearly indicates that the product contains lotus

flower extracts as a key ingredient and the

respondents/defendants would be entitled to the benefit under

Section 30(2)(a) of the Act and that the said term cannot be

held as being suggestive.

VIII.The distinction between the mark being either suggestive or

descriptive was not held by the learned Single Judge to be of a

great significance since the wording of Section 30(2)(a) of the

Act includes the words “kind”, “quality” and “other

characteristics” as an indication of the quality/characteristic of

the product, which in this case is the lotus flower extract. The

learned Single Judge also noted the fact that bottle of the

respondents’/defendants’ product contained the term

“conditioning cleanser with lotus and bioflavonoids”, which

justifies the use of the term “Lotus Splash” to convey to the

FAO (OS) (COMM) 45/2024 Page 18 of 59

mind of the average consumer, who would be influenced by

the description which immediately follows below the said

mark. The learned Single Judge was of the opinion that the

gaze of the average consumer would fall equally on “Lotus

Splash” as also on the descriptive explanation below to convey

to the consumer that the key component of the said product is

Lotus extract.

IX.The learned Single Judge in the impugned judgment also noted

that for the defence of Section 30(2)(a) of the Act to be

available, the mark only needs to contain one or more of the

factors envisaged in the clause. Given the prominence of Lotus

extract as the ingredient in the impugned product, it was noted

that the respondents/defendants were entitled for the said

defence.

X.The impugned judgment noted that at aprima faciestage, it

could be seen that the products of the appellant/plaintiff was

different from those of the respondents/defendants and that the

latter had made out a case for protection under Section 30(2)(a)

of the Act.

XI.If the product of the respondents/defendants is seen in light of

the range of their other products, it can be noted that the

impugned product “Lotus Splash” is not the odd mark out

since all the products of the respondents/defendants contain the

key ingredient as a descriptor along with another word, which

FAO (OS) (COMM) 45/2024 Page 19 of 59

is indicative of its said quality such as “Turmeric” with

“Shield” used as a suffix since it is known to have antiseptic

properties and the term “Patchouli” used with “Glow” as a

suffix to indicate that the patchouli extract is a sunscreen and

thereby justifying the use of the term “Glow”. Even though the

learned Single Judge noted that some products such as

“Licorice Beam” and “Gotu Kola Dew” do not indicate any

immediate connection. Although, the term “Lotus Splash” falls

in the former category according to the learned Single Judge

and is not only indicative of the constituent of the product but

also the fact that it is a facial cleanser which is infact to be

splashed on the face, hence, justifying the use of the term

“Lotus Splash” as a descriptor. The use of the said term is

hence neither a coincidence nor an attempt to confuse the

consumers.

XII.On the other hand, it was opined by the learned Single Judge

that the product of the respondents/defendants contained

enough distinguishing features such as the term “Lotus” being

used in conjunction with the term “Splash” as well as the fact

that the trademark of the respondents/defendants “82° E” finds

mention on the lower edge of the bottle. If the product of the

appellant/plaintiff and respondents/defendants were kept next

to each other in the same store and compared to each other, the

consumer would immediately be able to identify the

differences between the two products and the consumer would

FAO (OS) (COMM) 45/2024 Page 20 of 59

focus on the mark of the respondent no. 1 being “82° E” as

well as the packaging, which shows a complete dissimilarity in

appearance as well as the price. A consumer, who is a regular

purchaser of such products, would know the difference

between both the marks.

XIII.The impugned judgment records while dismissing the

application for temporary injunction that there was noprima

faciecase made out for infringement.

13.On the issue of whether the exemption under Section 30(2)(a) and

Section 35 of the Act are applicable to the respondents or not, the learned

Single Judge came to the conclusion that the respondents were entitled to the

said exemption as the respondents have used the term “Lotus Splash” as an

indicator of “kind” and “quality” of the respondents’ product. The learned

Single Judge accepted the argument of the respondents that the product is

indicative of the ingredient and thereby the characteristics of the product and

hence cannot be regarded as infringing in nature.

SUBMISSIONS ON BEHALF OF THE APPELLANT

14.Mr. Chander M. Lall, learned Senior Counsel for the appellant

appearing with Mr. Vaibhav Vutts has contended that the appeal assails the

impugned order dated 25.01.2024 of the learned Single Judge wherein the

appellant despite holding the registration of the mark “Lotus” finds its mark

being infringed by the respondent nos. 1 & 2 under Section 29 of the Act. It

is the case that according to the learned Single Judge, Section 29(1) of the

Act is applicable only when the infringing mark is identical to that of the

FAO (OS) (COMM) 45/2024 Page 21 of 59

original registered mark, which in this case is the mark of the appellant. He

stated that a bare reading of Section 29(1) of the Act shows that the

provisions apply both to identical or deceptively similar marks and the

learned Single Judge in fact did arrive at a finding that the mark “Lotus

Splash” was deceptively similar to the appellant’s mark “Lotus” and that

Section 29(1) of the Act should have been applied.

15.As per Mr. Lall, by jettisoning the provisions of Section 29(1) of the

Act, the impugned order fails to consider the fact that the manner of the use

of the mark “Lotus Splash” by the respondents is in fact use of the mark in a

trademark sense. This is evident from the manner of the use of the mark

“Lotus Splash”, which is displayed in a prominent and distinctive manner,

which is being used as a clear functioning source identifier and a badge of

origin.

16.The recourse to Section 30(2)(a) of the Act would be misplaced in this

context and cannot be read in isolation from the other provisions of the Act.

The interpretation of Section 30(2)(a) of the Act must be done in a

purposeful manner where the settled positions of prior extensive use, sales,

advertisements, popularity and legal actions have to be taken into view

which according to Mr. Lall have not been done in this case. Such a wide

interpretation of Section 30(2)(a) of the Act would render well settled

positions of prior extensive use as being disregarded and would entail that

any infringer trying to claim the mark could do so by claiming the same to

be indicative. According to him, the impugned judgment has erred in law

while applying Section 30(2)(a) of the Act on the infringing mark “Lotus

Splash”, which has to be considered as only a descriptive phrase without

FAO (OS) (COMM) 45/2024 Page 22 of 59

dovetailing the trade mark with other materials such as the description under

the trade mark, along with the contents of the respondent no. 1’s website and

advertisement. According to Mr. Lall, the reliance placed on the judgment in

the case ofZydus Wellness Products Limited v. Cipla Health Ltd. and

Another, 2023 SCC OnLine Del 3785, the learned Single Judge departed

from his own findings and did not consider the fact that in the said

judgment, it had been held that the infringing mark has to be seen as isde

horsany other additional material on the packaging.

17.Mr. Lall would contend that the impugned order is contrary to the

provisions of Section 30(2)(a) of the Act wherein the mark must be

considered in its entirety for the same to fall within the said exception. The

dissection of the mark is not permissible for one to avail the benefits of

Section 30(2)(a) of the Act. The impugned judgment has faltered by

dissecting the mark and considering the word “Lotus” separately as

indicative of the component of the product and ignoring the term “SPLASH”

in the infringing trade mark. It is his case that the mark must not be

dissected and the same is a well settled position of law.

18.Mr. Lall has argued that the impugned judgment ought to be

considered bad in law as the same has acknowledged the intentions and

concealment of material by the respondents and has recorded that the

respondents have in fact applied for five trade marks being “Turmeric

Shield”, “Licorice Beam”, “Ashwagandha Bounce”, “Gotu Kola Dew” and

“Patchouli Glow” but not the trade mark “Lotus Splash”. The respondents in

their affidavit dated 11.07.2023 stated that the said term was used in a

descriptive fashion and then consolidated their position in the affidavit dated

FAO (OS) (COMM) 45/2024 Page 23 of 59

08.08.2023. This as per the case of the appellant is an act of deliberate

concealment and clear evidence that the use of mark “Lotus Splash” is in a

trade mark sense just as the use of the other marks by the respondents. He

stated that the impugned judgment on one hand stated that the other marks

such as “Turmeric Shield” etc., are not relevant and then, on the other hand,

goes on to state that the marks which have been applied for reveal an

interesting feature.

19.The appellant is of the view that the impugned order has also ignored

the principles of passing off which as per Section 27 of the Act is an entirely

separate remedy and the defence under Section 30(2)(a) of the Act would

not be available. Mr. Lall has couched this assertion on the fact that the trade

mark of the appellant has tremendous reputation with the use of trade mark

“Lotus” being used over a period of 30 years and with sales running

upwards of Rs.500croreswith many successful legal action against third

party violations along with many celebrity endorsements. He stated that the

appellant has also sponsored various Indian Premier League tournaments

including the first ever Women Premier League in 2023.

20.According to him, the learned Single Judge has come to a finding that

there is bound to be confusion and deception if the mark “Lotus” is used and

based on this finding alone, the remedy of passing off should have been a

logical consequence to the said findings. In this regard, he has placed

reliance on the judgment in the case ofCadila Health Care Ltd. v. Cadila

Pharmaceuticals Ltd., (2001) 5 SCC 73.

21.According to him, the learned Single Judge has ignored the large

FAO (OS) (COMM) 45/2024 Page 24 of 59

goodwill of the appellant and has given acarte blancheto third parties for

the use of the word “Lotus” under the settled principles of law. Lastly, Mr.

Lall was of the opinion that the learned Single Judge has in fact returned a

finding of deception on aprimafaciebasis and even then refused the

injunction. It is his case that the balance of convenience is in favour of the

appellant as the respondent admittedly has other brands, however, the

appellant is owner and proprietor of single brand i.e., “Lotus”. He stated that

the appellant is a prior user of the said mark since the respondents have only

used the said mark only after January, 2023 and thereby, causing an

irreparable injury to the appellant, the damages of which cannot be

reconciled. If the use of the said mark was in fact allowed to be continued

then it would give an opportunity to various other third parties to start using

the formative mark “Lotus” under the garb of descriptive use citing “Lotus”

as being an ingredient. The same would lead to the dilution of the well

known mark “Lotus” of the appellant and the goodwill and reputation built

over the years would be turned to naught.

22.In support of his submission Mr. Lall has relied on the following

judgments:-

(i) Corn Products Refining Co. v. Shangrila Food Products Ltd.,

1959 SCC OnLine SC 11;

(ii)Amritdhara Pharmacy v. Satya Deo Gupta, 1962 SCC OnLine

SC 13;

(iii)Kaviraj Pandit Durga Dutt Sharma v. Navaratna

Pharmaceuticals Laboratories, 1964 SCC OnLine SC 14;

(iv)Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001)

5 SCC 73;

(v) S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683;

(vi)Godfrey Philips India Ltd. v. Girnar Food & Beverages (P)

FAO (OS) (COMM) 45/2024 Page 25 of 59

Ltd., (2004) 5 SCC 257;

(vii)Mohd. Rafiq and Ors. Vs. Modi Sugar Mills Ltd. AIR 1972

Delhi 46;

(viii)Marico Ltd. v. Agro Tech Foods Ltd. 2010 SCC OnLine Del

3806 (2);

(ix)Piruz Khambata & Anr. Vs. Soex India Pvt. Ltd. & Ors. 2011

SCC OnLine Del 5598;

(x) Hem Corpn. Pvt Ltd. v. ITC Ltd., 2012 SCC OnLine Bom 551;

(xi)Procter & Gamble Manufacturing (Tianjin) Co. Ltd. v. Anchor

Health & Beauty Care Pvt. Ltd, 2014:DHC:2936-DB=

2014 SCC OnLine Del 3374;

(xii)Jagdish Gopal Kamath v. Lime & Chilli Hospitality Services,

2015 SCC OnLine Bom 531;

(xiii)Anil Verma v. R.K. Jewellers SK Group, 2019 SCC OnLine Del

8252 (2);

(xiv)Zydus Wellness Products Ltd. v. Cipla Health Ltd., 2023 SCC

OnLine Del 3785;

(xv)Abu Dhabi Global Market v Registrar of Trademarks Delhi

2023 SCC Online Del 2947;

(xvi)Sky Enterprise (P) Ltd. v. Abaad Masala & Co., 2020 SCC

OnLine Bom 750;

(xvii)Moroccanoil Israel Ltd. v. Modicare Ltd., (2022) 6 HCC (Del)

548;

(xviii)T.V. Venugopal v. Ushodaya Enterprises Ltd., (2011) 4 SCC

85;

(xix)Info Edge (India) (P) Ltd. v. Shailesh Gupta, 2002 SCC

OnLine Del 239;

(xx)Sunil Mittal v. Darzi On Call, 2017 SCC OnLine Del 7934;

(xxi)PEPS Industries (P) Ltd. v. Kurlon Ltd., 2022 SCC OnLine Del

3275;

(xxii)Apaar Homez Mart (P) Ltd. v. Century World, 2022 SCC

OnLine Del 2762;

(xxiii)Anil Verma Vs. Ashok Kumar, 2019 SCC OnLine Del 6910;

(xxiv)Renaissance Hotels Holding Inc. vs. B. Vijayasai 2022 (5) SCC

1;

(xxv)Automatic Electric Ltd. v. R.K. Dhawan, 1999 SCC OnLine Del

27;

(xxvi)Caterpillar Inc. v. Mehtab Ahmed, 2002 SCC OnLine Del 865.

FAO (OS) (COMM) 45/2024 Page 26 of 59

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

23.Mr. Dayan Krishnan, learned Senior Counsel appearing on behalf of

the respondent nos. 1 & 2 along with Mr. Pravin Anand has contended that

the impugned order is a well reasoned order and the I.A. no. 12308/2023

filed by the appellant was rightly rejected by the learned Single Judge.

According to him, the product of the respondents is a facial cleanser that is

sold under the marquee brand of “82°E”. According to him, the use of the

term “Lotus” is abona fidedescriptive use protected within Section 30(2)(a)

and Section 35 of the Act as it describes a product, which is containing the

ingredient being extracts of the lotus flower and the same is not a matter of

contention. He has relied on the material available on the website, social

media, trade article and the reply to the said appeal, to support his

arguments.

24.Mr. Krishnan is of the view that since the term “Lotus Splash” is used

descriptively for a product, which is a face wash/facial cleanser wherein the

term “Lotus” alludes to the main ingredient and the term “Splash” describes

a process of washing the face, which entails splashing. It is his case that the

respondent nos. 1 & 2 followed this nomenclature for their entire product

line wherein the product features the active ingredient prominently as part of

the product name.

25.On the issue of whether the exception contained under Section

30(2)(a) and Section 35 of the Act are applicable to the respondent nos. 1

and 2 herein is concerned, Mr. Krishnan places reliance on the judgment in

FAO (OS) (COMM) 45/2024 Page 27 of 59

the case ofMarico Ltd. (supra)to show the limits in the rights of the trade

mark owner. He has stated that the term “Lotus Splash” refers to the kind,

quality, quantity, intended purpose or other characteristics of goods or

services and hence, being abona fideuser of the term “Lotus Splash” in a

descriptive sense, the case of the respondents falls under the said exception

in Section 30(2)(a) and Section 35 of the Act. According to him, neither

Section 30(2)(a) nor Section 35 of the Act prescribe the nature of the use by

a party, which covers this defence, in other words, the use of the term in a

descriptive sense as a part of a legend or byline is not a use, which attracts

the provisions pertaining to infringement under the Act.

26.The judgment in the case ofMarico Ltd. (supra)on another aspect, as

per Mr. Krishnan, had held that the persons adopting descriptive marks

cannot be permitted to monopolies the same and preclude third party usage

of the said mark in abona fidecapacity. According to him, the real test in

determining whether or not the defences under Section 30(2)(a) and Section

35 of the Act are available or not, one would need to test the fact that

whether there is an attempt to cause confusion or ride on the goodwill. Once

this test is answered in favour of the respondents, the users would be entitled

to use the descriptive mark in any and every manner, which repudiates the

argument of the appellant that the said usage can only be in a legend or a

byline. The usage of the term “Lotus Splash” in conjunction with the trade

mark “82°E” would clearly establishbona fideuse under the Act.

27.He buttresses his arguments on the judgment inCadila Health Care

Ltd. (supra)to state that the test while determining the application of the

exception under Section 30(2)(a) and Section 35 of the Act is, whether there

FAO (OS) (COMM) 45/2024 Page 28 of 59

is an attempt to ride on the bandwagon of the appellant’s indubitably market

leading product. He stated that the Coordinate Bench of this Court in that

case had rejected the findings of the learned Single Judge that the phrase

“Sugar Free” can only be used a part of the sentence or a catchy legend and

that the same can only be descriptive but not a part of a product name.

28.Mr. Krishnan submits that in the case at hand, there is no attempt to

ride on the goodwill of the appellant and according to him, the record

reveals the opposite and that there is no scope for confusion between the

products of the appellant and that of the respondents; given that there is a

price difference between the said products, which averts any possibility of

confusion. Moreover, the get up of the product and the use of the trade mark

of the respondents being “82°E” further allays any possibility of confusion.

Given that the goodwill of the respondent no. 1 is a reflection of the

celebrity status of respondent no. 2, there is no possibility of encashing on

the goodwill of the appellant. Since there is a rule against dissection of

trademark as explained inHamdard National Foundation (India) v. Sadar

Laboratories P. Ltd. 2022 SCC Online Del 4523, therefore, the term “Lotus

Splash” cannot be dissected and has to be compared with the mark “Lotus” /

“Lotus Herbal”.

29.Mr. Krishnan would contend that the learned Single Judge has

correctly noted the factual and legal submissions and returned with findings

that do not warrant any interference. The protection afforded under Section

30(2)(a) of the Act cannot be curtailed by any foreign jurisprudence by

holding that the mark is only descriptive and not suggestive for the fact that

it contains lotus extract. The finding that “Lotus Splash” immediately

FAO (OS) (COMM) 45/2024 Page 29 of 59

conveys to the average consumer that the said product contains lotus extract

and is a key ingredient and hence, entitling the usage by the respondents of

the said term as being an indicative and a prominent part of its product. Any

remaining doubt as to a possibility of confusion is removed by the presence

of the trade mark “82°E” and hence, no case for passing off is made out

since there is a variable difference in the products.

30.Lastly, Mr. Krishnan has relied upon the judgments in the cases of

Wander v. Antox, (1990) Supp SCC 727andAce Technologies Corp and

Ors, v. Communication Components Antenna Inc., FAO(OS) (COMM.)

186/2019to state that the impugned order is not perverse or arbitrary and

warrants no interference.

REJOINDER SUBMISSIONS ON BEHALF OF THE APPELLANT

31.Mr. Lall in his rejoinder has contested the submissions made on

behalf of the respondents and has handed over during the course of

proceedings a chart of brands to argue that adding a certain ingredient to a

new product would not give rise to a new right. To that effect, he has given a

list of brands and has stated whether adding a certain ingredient along with

another descriptor would not give rise to a new protected trade mark such as

adding mango fruit dyes or fabric wash while manufacturing clothes does

not entitle an individual to sell its products under a hypothetical name

“MANGO SLASH” and thereby, claimingbona fideuse against the mark

“MANGO”, which is a brand associated with apparel. He has also given

some other similar examples.

32.He has drawn our attention to paragraphs nos. 46, 54, 56 to 60, 68 and

FAO (OS) (COMM) 45/2024 Page 30 of 59

74 of the impugned order to state that there are contradictions

inconsistencies within the said order. He has also handed over a chart during

the course of the proceedings to highlight the same.

ANALYSIS AND CONCLUSION

33.Having heard the learned counsel for the parties and perused the

record, the short issue, which arises for consideration is whether the

respondents are entitled to the defence available under Section 30(2)(a) and

Section 35 of the Act, as held by the learned Single Judge, leading to the

rejection of the application under Order XXXIX Rule 1 and 2 of the CPC.

34.The products belonging to the appellant/plaintiff and that of the

respondents/defendants for comparison have been depicted below:-

FAO (OS) (COMM) 45/2024 Page 31 of 59

35.To answer the issue, it is necessary to deal with the stand of the

respondents/defendants that the words “Lotus Splash” are descriptive words.

The contention of Mr. Krishnan is that the words are descriptive words as

they denote the characteristic of the lotus as it contains lotus flower extracts

and bioflavonoids, since the product is intended to be used as a face

wash/facial cleanser. This submission of Mr. Krishnan is countered by Mr.

Lall by stating that it is their own case, i.e., of the respondents/defendants

that the phrase “Lotus Splash” is being used as a mark. In this regard, he

has drawn our attention to paragraphs 20 to 24 of the written statement of

the respondents/defendants which we reproduce as under:

“20. 'Lotus Splash' is a conditioning cleanser. The primary

ingredient of the product is Nelumbo Nucifera extract. Nelumbo

Nucifera is the botanical name for the lotus plant.

21. In fact, the product itself clearly bears a description being

'conditioning cleanser with lotus and bioflavonoids.' It is clear

that 'lotus' is used to describe the product and more

particularly the fact that it is made inter alia using 'lotus flower

extract'.

22. Even the website of the Defendant No.1, which bears a

photograph of this product also bears a clear description of the

same including the fact that one of the key ingredients of the

said product is lotus flower extract. Copies of screenshots

showing this product of the Defendants' along with its product

description as depicted on the said Defendants' website is

annexed with the list of documents being filed with the Written

Statement.

23. From the aforementioned facts, it is evident that the

Defendants are merely using the term 'lotus ' in a descriptive

manner in order to describe the key ingredients of their face

wash and not in any other manner whatsoever. This use is

expressly protected in terms of Section 30(2)(a) and Section 35

of the Trademarks Act, 1999.

FAO (OS) (COMM) 45/2024 Page 32 of 59

24. It is stated that the Plaintiffs assertion of rights is contrary

to the statutory mandate contained in Section 30(2)(a) and

Section 35 of the Trademarks Act, 1999. In specific, the

Defendants state that the Plaintiff is attempting to monopolise a

word in the English language that is commonly used to

describe an ingredient. The word 'lotus' has been and continues

to be used regularly in the industry to describe the plant and it's

use as an ingredient in cosmetics and other personal hygiene

products.”

36.There is a clear indicator in the averments that the words “Lotus

Splash” is being referred to as mark. In fact Annexure 14 and 41 of the

documents accompanying this appeal, to which our attention has been

drawn, depicts the sale of the products on the website and the same indicates

that the product is being sold as “Lotus Splash” and not as “82° E” and in

that sense the words “Lotus Splash” are not be construed as a description of

lotus extracts accompanied by bioflavonoids, but rather the product of the

respondents which appears in the first row that is a pictorial representation

of the products and shows that respondents’ product is named as “Lotus

Splash Gentle Face …” along with the products of the appellant which can

be sourced from various suppliers including the appellant company.

Similarly, the product of the respondents also mentions the website of the

respondent being “82e.com” which in this assortment of results may be

unclear to the average consumer that the same is the supplier or owner of the

product. In this context the mark of the respondents in this case does not

fulfill the function of the trade mark “82°E” i.e., being the source identifier.

Annexure 14 which is a screenshot taken on 30.06.2023 of the Google

search for the term “lotus face wash” as featured product of the appellant

and the respondents; and Annexure 41 which is another Google search

FAO (OS) (COMM) 45/2024 Page 33 of 59

conducted on 31.07.2023 for the term “lotus face wash” depicts the product

of the respondents as the first result in the sponsored results. We have

reproduced both the screenshots as under:

FAO (OS) (COMM) 45/2024 Page 34 of 59

FAO (OS) (COMM) 45/2024 Page 35 of 59

37.The contention of Mr. Krishnan that the term “Lotus Splash” is being

used as a descriptor further does not pass muster on the ground that the

respondents have in fact purchased the keywords “Lotus Face Wash” to

array itself as the first result among the sponsored results on the Google

search results page, which shows that intent of the respondents to use the

term “Lotus” in a trade mark sense. In this regard, we make a reference to a

judgment of this Court in the case ofGoogle LLC v. DRS Logistics (P) Ltd.

& Ors 2023 SCC online Del 4809, wherein a Coordinate Bench of this

Court had held that the use of a trademark as a keyword to trigger display of

an advertisement of goods or services would be use of the mark in

advertising. In the context of this case, since the respondents’ product

appears when the phrase “lotus face wash” is searched, thus this clearly

shows the fact that the respondents intend to use the term as a mark and not

as a mere descriptor.

38.The plea of Mr. Krishnan, the product is being sold as “82°E” cannot

be accepted. Further, in this regard, we may also refer to Annexure A-13

which is an invoice dated 29.05.2025 of the respondents for the impugned

product where the product is mentioned as “Lotus Splash conditioning

cleanser” and no reference to “82°E” is made save for the email address

care@82e.com . The said invoice reads as under:

FAO (OS) (COMM) 45/2024 Page 36 of 59

39.If this is the factual position, the exception as carved out under

Section 30(2)(a) of the Act is not of any help to the respondents/defendants.

This we say so for the simple reason, 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. The

argument of Mr. Lall in this regard is that the judgments in the cases of

Cadila Health Care (supra)andMarico (supra)are in contrastto the facts

of this case inasmuch a reference to the term “Lotus” may be descriptive

nonetheless it does not absolve the term / mark “Lotus Splash” from being

regarded as a suggestive mark and therefore not being descriptive in nature.

We agree with this submission of Mr. Lall, to the extent that not every

reference to the term “Lotus” is to the mark “Lotus Splash” and that the

respondents are entitled to use the term “Lotus” as a descriptor but not in the

manner that it has being projected as a sub mark.

40.It is important to note that other similar products of the respondents

being “Ashwagandha Bounce”, “Turmeric Shield”, “Licorice Beam”, “Gotu

Kola Dew” and “Patchouli Glow” which though indicative of the

characteristic of a product have been applied for registration as a trade mark

by the respondents/defendants but not “Lotus Splash”. The same indicates

that those words which are similarly situated are being used as a trade mark

by the respondents/defendants. In fact, the issue arose out of the factum that

the respondents/defendants had not stated the fact that the names of the

aforesaid products have been applied for trademark registration and hence in

that sense there was a concealment. The same was rejected by the learned

single judge by stating that those marks are different from the impugned

FAO (OS) (COMM) 45/2024 Page 37 of 59

mark in “Lotus Splash”.

41.Although the learned Single Judge has noted the fact that only some

of the products of the respondents have been registered, no cogent reason

has been given by the respondents as to why other products of the

respondents have been registered but not the product “Lotus Splash” which

has been claimed as an exception to the other products is a descriptor. Even

though the learned Single Judge remarked that the present case does not

concern the other marks but the issue of concealment should have been

considered by the learned Single Judge as concealment of the actions of the

respondents shows their intent to use “Lotus Splash” as a mark indirectly.

Moreover, we do not agree with the reasoning of the learned Single Judge

that in the case of “Licorice Beam” or “Gotu Kola Dew” there is no

descriptiveness in the products whereas “Patchouli Glow”, “Turmeric

Shield” or “Lotus Splash” are descriptors, especially when the respondents

have applied for trademark registration of their products except for “Lotus

Splash”.

42.Furthermore, we must also question thebonafidesof the respondents

and we dissent with the conclusion of the learned Single Judge wherein the

suppression of material fact, being that the respondents had applied for

registration of marks for its other products was not putforth before the Court.

Although the same would be subject to trial whether the respondents had in

fact actedbona fideor not but the learned Single Judge ought to have further

examined the issue, more so since the matter pertained to grant of an

equitable relief, at the behest of a party, who is a prior user, having

registered trademarks and alleging infringement.

FAO (OS) (COMM) 45/2024 Page 38 of 59

43.We are unable to agree with such conclusion of the learned Single

Judge, as according to us, all the products including “Lotus Splash” though

appears to be descriptive are in fact being used as a trade mark. In other

words, there is no differentiation between the marks “Lotus” and “Lotus

Splash”. Having said so, we find ourselves in agreement with the reasoning

of the learned Single Judge while dealing with the scope of the Section 29 of

the Act wherein the learned Single Judge had held that since the marks of

the appellant are registered aprima faciecase for infringement is made out.

Moreover, we accept the submission of Mr. Lall that once there is a finding

given by the Court on a fact that aprima faciecase for infringement is made

out an injunction ought to follow. In this regard, we refer to the relevant

paragraphs of the impugned judgment which read as under:

“57. That apart, where the plaintiff has a word mark

registration and the entire word mark of the plaintiff is

contained in the defendants’ impugned product name,

there is clear possibility of a likelihood of confusion.

This is not a case in which part of the plaintiff’s mark

is to be found in the impugned mark of the defendants,

so that there can be a possibility of confusion being

mitigated by the surviving differences between the two

marks. The entire mark “Lotus” is part of the

defendants’ “Lotus Splash” mark and, as both marks

are used for cosmetic preparations such as face wash,

there is a prima facie likelihood of confusion as a

result of the use, by the defendants, of the impugned

“Lotus Splash” mark.

58. The three ingredients of similarity of marks,

similarity/identity of the goods in respect of which the

rival marks are used and likelihood of confusion or

association in the minds of the public as a result of the

existence of these two factors are prima facie satisfied

in the present case.

FAO (OS) (COMM) 45/2024 Page 39 of 59

59. Inasmuch as the plaintiff’s marks are registered, a

prima facie case for infringement exists, within the

meaning of Section 29 of the Trade Marks Act.”

44.Section 29(1) of the Act clearly states that a registered trade mark is

infringed when it is being used by a person without the permission of the

registered proprietor in the course of trade with a mark which is either

identical or deceptively similar, being used for the same goods/services and

in a manner that may be perceived to be considered use as a trademark. The

learned Single Judge examines the marks and returns a finding on this

aspect. Considering that the appellant is a prior user with a registration as

compared to the respondents who are subsequent non-registered users,

surely the benefit of registration must enure to the benefit of the former.

Especially when the appellant had begun operations on 20.09.1993 with

registrations of their trade mark going back to 02.08.1996 and their turnover

for the year 2022-23 was to the tune of Rs.694croresas opposed to the

respondent no.1 company which was incorporated only on 05.05.2021.

45.Furthermore, the learned Single Judge has come to the conclusion that

there is a likelihood of confusion along with the mark of the respondents

being the same and in the same category of goods and service. The learned

Single Judge has also concluded that an individual who is a regular

purchaser of such products would know the difference between the marks.

We must note that these findings are inconsistent with each other and the

latter goes beyond the test laid down in the case ofCadila Healthcare Ltd.

(supra)for the average consumer. The test for confusion must be assessed

from the stand point of the average consumer and not from the perspective

of an informed consumer.

FAO (OS) (COMM) 45/2024 Page 40 of 59

46.The learned Single Judge has in clear terms concluded on the aspects

of likelihood of confusion and also that three ingredients of similarity of

marks, similarity/identity of goods in respect of which the rival marks are

being used including likelihood of confusion are satisfied in this case. The

marks “Lotus” of the appellant and “Lotus Splash” of the defendants are

used for cosmetic preparation such as a face wash and there is a likelihood

of confusion. Hence to give the respondents/defendants the benefit under

Section 30(2)(a) is clearly erroneous, more particularly in the facts of this

case.

47.Mr. Krishnan has argued that in order to determine whether the

defences under Section 30(2)(a) and Section 35 of the Act are applicable to

the case of the respondents, the question of likelihood of confusion would

need to be answered. We note that the learned Single Judge has returned a

finding on this issue and hence at aprima faciestage this defence would not

be available to the respondents. In the judgment in the case ofS. Syed

Mohideen (supra), the Supreme Court had emphasised the superiority of the

rights of the prior user and had stated that registration merely recognises the

pre-existing common law rights. The Supreme Court had in the case of

Neon Laboratories Ltd. v. Medical Technologies Limited and Ors., (2016)

2 SCC 672, held that the prior use with registration alone is not enough, the

use of a trade mark must be consistent and continuous. Both the conditions

are satisfied in favour of the appellant, who in this case is a registered prior

user and must be accorded the benefit of the same.

48.Whether the mark of the respondents is descriptive or not, would be a

subject matter of trial, however at thisprimafaciestage we are of the

FAO (OS) (COMM) 45/2024 Page 41 of 59

opinion, based on the records before us that the arguments advanced being

that the mark/phrase “Lotus Splash” is not a descriptor as the mark is sought

to be used as a mark or as a sub-brand at the most. In this regard, we may

make a reference to a judgment of Bombay High Court in the case ofHem

Corporation (supra).

49.The reason why we say that the mark of the respondents is a sub

brand is because the respondents have registered the word/phrase on their

other products over and above the mark “82°E” such as “Turmeric Shield”,

“Ashwagandha Bounce”, etc. It implies that the words/mark “Lotus Splash”

is similar / identical and at par with the other products of the respondents as

a sub mark under the umbrella mark i.e., “82°E”. It follows as held in the

case ofHem Corporation (supra)that a sub-mark does not fall outside the

ambit of the provisions applicable to trade marks. The relevant paragraphs

are as under:-

“25. The most prominent feature in the defendant's

packaging/label is indeed the word “MANGALDEEP”

written in a stylized manner within the device of a rectangle

with red borders. To the right of the rectangle is the word

“MADHUR 100” written in red letters within a horizontal

oval device with a white background. The letters in the word

“MADHUR” are indeed much smaller than the letters in the

word “MANGALDEEP”. The word “MANGALDEEP” is

more prominent than the mark “MADHUR 100”. That,

however, to my mind, makes no difference for the mark

“MADHUR 100” appears as a part of a composite mark

“MANGALDEEP Madhur 100” and not as merely a term

descriptive of the products sold under the mark “MANGAL

DEEP”. The placement of the word “MADHUR 100” right

next to the word “MANGALDEEP” enhances the possibility

of the consumer considering the mark to be

FAO (OS) (COMM) 45/2024 Page 42 of 59

“MANGALDEEP Madhur 100” and not “MANGALDEEP”

alone.

26. The defendant contended that its agarbattis are sold

under the mark and its various variants containing

descriptive sub-brands such as “MOGRA”, “JASMINE”,

“SANDALWOOD”, “MADHUR” and “MADHUR 100”;

that “MANGALDEEP” is the umbrella brand and that it

uses this brand in conjunction with descriptors such as

“MADHUR” and “MADHUR 100” and that the descriptors

are used to signify the quality and characteristics of the

products and are used only in conjunction with the umbrella

brand “MANGALDEEP”.

xxxx xxxx xxxx xxxx

28. The intention to use a mark as a trademark is not the

only factor that constitutes infringement. A registered

trademark is infringed by a person if he uses it in such a

manner as to render the use of the mark likely to be taken as

a trademark. In other words the use of a registered

trademark would constitute an infringement if it indicates a

connection in the course of trade between the person and

his goods or services irrespective of his intention. This is

clear from the phrase in section 2(1)(zb)(ii) “for the

purpose of indicating or so to indicate”.

29. I have already come to the conclusion that the use of the

mark by the defendant is as a trademark and not merely as

descriptive of the product.

30. I also find well founded Dr. Tulzapurkar's submission

that the defendant, in fact, intended using the word

“MADHUR” as a trademark and not merely to describe its

products. Dr. Tulzapurkar rightly prefaced his reference to

the various factors with the comment that although each of

these factors taken by themselves may not support his

submission, taken together they do.

31. The reliance upon the defendant's application for

registration of the label mark is, however, of no assistance

in considering this aspect. The application for registration

was not of the word mark “MADHUR”. The label contains

the entire get-up of the packaging, including the words

FAO (OS) (COMM) 45/2024 Page 43 of 59

“MANGALDEEP Madhur 100”. The label by itself only

begs the question viz. whether the word “MADHUR” is

used as a mark or not.

32. Dr. Tulzapurkar then relied upon various averments in

the affidavit in reply which refer to “MANGALDEEP” as

the umbrella brand and the use of the trademark

“MANGALDEEP” in conjunction with other words such as

“MANGALDEEP Madhur”, “MANGALDEEP Mogra”,

“MANGALDEEP Jasmine” and “MANGALDEEP Madhur

100” as sub-brands. Dr. Tulzapurkar relied upon these

references in the affidavit in reply. In paragraph 7, it is

stated that the defendant's label trademark application

“MANGALDEEP Madhur” was advertised in the TM

Journal. In paragraph 10-h, it is stated that the defendant

launched it's brand of agarbattis “primarily under its

umbrella brand “MANGALDEEP” and this umbrella brand

was further associated with a wide range of descriptive sub-

brands like ……. Madhur etc.” In paragraph 10-q, the

defendant has furnished the total sales figures for the

“brand MANGALDEEP Madhur”. Paragraph 10 states that

the defendant's agarbattis under the “brand

MANGALDEEP Madhur” are patronized by a wide cross-

section of population and the brand “MANGALDEEP” and

all the descriptive sub-brands enjoy considerable goodwill

and reputation.

33. There is indeed a reference to “MANGALDEEP

Madhur” as a descriptive sub-brand. A sub-brand does not

fall outside the ambit of a trademark if it is used as a mark.

In fact, a reference to it as a sub-brand would indicate that

it is a brand name/mark.”

50.Similarly, in the case ofPiruz Khambatta (supra)wherein the facts

are the plaintiff no.1 was the registered proprietor of trademark/trade name

“RASNA” and its variants in India in various classes under the provisions of

the Act. The plaintiffs therein had over 100 registrations of the mark

“RASNA” in India, the plaintiff no.1 has also held the registration of the

FAO (OS) (COMM) 45/2024 Page 44 of 59

trade mark “RASNA” and its variants in many foreign countries as the

plaintiffs have also been marketing and exporting goods under the said

Trade Mark. The allegations of infringement by the plaintiff against the

defendant was primarily for the reason that exporting unmanufactured

tobacco products to over 75 countries with brand name “AFZAL” with

flavor of “Pan Rasna”. As per the defendants, “Pan Rasna” was not a trade

mark and was only one of the many flavours of tobacco product being sold

under the trademark “AFZAL”. The said tobacco related products and

packaging bore the mark “AFZAL” in larger font than the term “Pan

Rasna”. The learned Single Judge therein on the basis of the facts of the case

as arose for consideration in the said case, has in paragraphs 38 and 41 to 45

held as under:-

“38. It is also pertinent to mention here that the manner of use

by the defendants, it cannot be said that they are merely using

the same in order to describe their products. Rather, the use of

the defendants shows and they are using as a sub-brand.

Therefore, the decisions referred by the defendants are not

applicable in the facts of the present case.

xxxx xxxx xxxx xxxx

41. In the present case, the mark RASNA is a registered trade

mark of the plaintiffs which is being used by them for the last

forty years and it has acquired goodwill and reputation as per

the material placed on record. The said trade mark has also

been protected from time to time. After having examination of

defendants' products which are scanned and are shown in para

19 of my order, prima facie establishes that the defendants

intend to use it as a sub brand and not in descriptive sense.

Thus, the present case and the cases referred to by the

defendants are materially different.

42. From the above, it is clear that the use of the mark RASNA

FAO (OS) (COMM) 45/2024 Page 45 of 59

by the defendants as a name or sub-mark amounts to

infringement even if the registered trade mark is not used by the

plaintiffs as there is no requirement of user under the provisions

of infringement of trade mark or conferring the exclusive rights

granted by virtue of registration, non user is a one of the defence

which may be considered by the courts while deciding the

interim application. It is a practice in law that till the time the

registered trade mark is entered in the register, no one is

entitled to infringe the same unless the court comes to the

conclusion the mark adopted and used by the defendants is

covered within the meaning of Section 30 and 35 of the Act and

such user is not made in bad faith.

43. In the present case, RASNA is prima facie cannot be said to

be descriptive mark in view of the averments made by the

plaintiffs in the plaint and documents placed on record. At the

most the word RAS in relation to soft drink concentrates can be

suggestive word which describe the character and quality of the

goods. Mr. Praveen Anand, learned counsel appearing on behalf

of the plaintiffs gave proposal to settle the matter and his clients

have no objection if the defendants may amend the use of mark

PAN RAS instead of RASNA. The suggestion given by the

plaintiffs was not acceptable to the defendants.

44. It is not understood as to why the defendants have chosen the

mark RASNA in relation to tobacco products when the

defendants have already had the mark BOMBAY PAN as one of

the flavours. It is also surprised to note that the defendants are

using the name Rooh Afza which is the known Trade Mark of

Hamdard Dawakhana. It appears to the court that these names

are used by the defendants in order to impress the customers

that the defendants have some association with these companies.

Incase the defendants are allowed to use the name RASNA,

tomorrow they will use the name PAN PEPSI/PAN LIMCA/PAN

AQUAFINA etc. as other flavours. The products in question

already contain the warning that “it is injurious to health” and

it causes cancer. The mark which has already acquired residual

goodwill and reputation if used by another party other than real

owner, there would be fair chances of danger of tarnishment and

FAO (OS) (COMM) 45/2024 Page 46 of 59

dilution of the same, otherwise, Hukkah tobacco manufactured

by the defendants do not have either the PAN RAS ingredient or

any content which can cure the soul as the defendants are using

the expression ROOH AFZA. The said claim of the defendants in

nature of flavour gives in the indication of False Trade

Description and is untrue within the knowledge of the

defendants.

45. In my view that there is hardly any hardship to the

defendants incase the interim order granted would continue. The

balance of convenience also does not lie in favour of the

defendants. If the defendants are allowed to use the name

RASNA or part of PAN RASNA, no doubt the plaintiffs will

suffer irreparable harm not only financially but also to their

goodwill and reputation. Thus, the adoption of the said name is

not with bonafide intention but it appears that it was deliberate

with malafide intention on the part of defendants in order to take

the advantage of known trade mark in the market.”

51.In a recent case ofPernod Ricard India Pvt. Ltd. & Anr. v.

Karamveer Singh Chhabra, 2025 SCC Online SC 1701,the Supreme Court

while not granting interim relief has laid the following principles for grant of

injunction:

“(F) LEGAL PRINCIPLES GOVERNING GRANT OF

INJUNCTION

36. The Trade Marks Act, 1999 does not prescribe any rigid or

exhaustive criteria for determining whether a mark is likely to

deceive or cause confusion. Each case must necessarily be

decided on its own facts and circumstances, with judicial

precedents serving to illuminate the applicable tests and

guiding principles rather than to dictate outcomes.

36.1. As a general rule, a proprietor whose statutory or

common law rights are infringed is entitled to seek an

injunction to restrain further unlawful use.However, this

remedy is not absolute. The considerations governing the grant

of injunctions in trademark infringement actions broadly apply

FAO (OS) (COMM) 45/2024 Page 47 of 59

to passing off claims as well. That said, a fundamental

distinction remains: while a registered proprietor may, upon

proving infringement, seek to restrain all use of the infringing

mark, a passing off action does not by itself confer an exclusive

right. In appropriate cases, the court may mould relief in

passing off so as to permit continued use by the defendant,

provided it does not result in misrepresentation or deception.

36.2. The grant of injunction - whether for infringement or

passing off - is ultimately governed by equitable principles and

is subject to the general framework applicable to proprietary

rights. Where actual infringement is established, that alone

may justify injunctive relief; a plaintiff is not expected to wait

for further acts of defiance. As judicially observed, “the life of

a trademark depends upon the promptitude with which it is

vindicated.”

36.3. The principles laid down in American Cyanamid Co. v.

Ethicon Ltd.30 continue to guide the Courts while determining

interim injunction applications in trademark cases. The

following criteria are generally applied:

(i) Serious question to be tried/triable issue: The plaintiff must

show a genuine and substantial question fit for trial. It is not

necessary to establish a likelihood of success at this stage, but

the claim must be more than frivolous, vexatious or speculative.

(ii) Likelihood of confusion/deception: Although a detailed

analysis of merits is not warranted at the interlocutory stage,

courts may assess the prima facie strength of the case and the

probability of consumer confusion or deception. Where the

likelihood of confusion is weak or speculative, interim relief

may be declined at the threshold.

(iii) Balance of convenience: The court must weigh the

inconvenience or harm that may result to either party from the

grant or refusal of injunction. If the refusal would likely result

FAO (OS) (COMM) 45/2024 Page 48 of 59

in irreparable harm to the plaintiff's goodwill or mislead

consumers, the balance of convenience may favor granting the

injunction.

(iv) Irreparable harm: Where the use of the impugned mark by

the defendant may lead to dilution of the plaintiff's brand

identity, loss of consumer goodwill, or deception of the public -

harms which are inherently difficult to quantify - the remedy of

damages may be inadequate. In such cases, irreparable harm is

presumed.

(v) Public interest: In matters involving public health, safety, or

widely consumed goods, courts may consider whether the

public interest warrants injunctive relief to prevent confusion

or deception in the marketplace.

36.4. In conclusion, the grant of an interim injunction in

trademark matters requires the court to consider multiple

interrelated factors: prima facie case, likelihood of confusion,

relative merits of the parties' claims, balance of convenience,

risk of irreparable harm, and the public interest. These

considerations operate cumulatively, and the absence of any

one of these may be sufficient to decline interim relief.”

(Emphasis supplied)

52.Mr. Lall is justified in relying upon the judgments in the cases of

Cadila Health Care Ltd. v. Cadila Pharmaceuticals (supra),Amritdhara

Pharmacy (supra)andKaviraj Pandit Durga Dutt Sharma (supra). We

have considered the principles laid down in the said judgments and we are of

the view that the appellants have made out aprimafaciecase for

infringement. In this regard, we may refer to the judgment in the case of

FAO (OS) (COMM) 45/2024 Page 49 of 59

Newgen IT Technologies Limited v. Newgen Software Technologies

Limited 2025:DHC:4964-DBwherein the rights of the registered prior user

were given protection over those of the unregistered subsequent user, the

relevant portions of which readsas under:-

“54. It is an undisputed fact that the Respondent has been

the prior user of the mark since 1992, whereas the

Appellant only commenced operations in 2017 under a

distinct identity, later entering into a Partnership

Agreement with the Respondent. During the subsistence of

that partnership, which was executed on 12.07.2023, the

Appellant began expanding its business under names closely

resembling the Respondent’s, transitioning from “VCARE

Infotech Solutions and Services Private Limited” to

“NEWGEN IT Technologies Private Limited” in May-2024.

Due to certain differences between the parties, they

dissolved their partnership in September-2024. Immediately

thereafter, the Appellant began rapidly expanding its

operations, including initiating steps toward an IPO with

this new name. All these circumstances collectively indicate

that the test of balance of convenience and inconvenience

also clearly tilts in favour of the Respondent, as non-grant

of the injunction would have caused significant

inconvenience and harm to the Respondent.

xxxx xxxx xxxx xxxx

68. We also reject the Appellant’s contention that the

Respondent’s trademark registration relates solely to a

label, and therefore, does not confer statutory rights over

the word “NEWGEN”. As reproduced in the Impugned

Order, the Respondent currently holds more than 18 valid

and subsisting trademark registrations prominently

featuring “Newgen” as the dominant and distinctive

element. Many of these marks date back decades. The

FAO (OS) (COMM) 45/2024 Page 50 of 59

Appellant’s selective focus on a single label mark, in an

attempt to undermine the Respondent’s broader trademark

rights, and its accompanying allegation of suppression, are

legally unfounded and without merit. Even otherwise,

“NEWGEN” is the predominant mark of the label. It is a

settled principle of law that though the trademark should

ideally be considered as a whole, there can be a

predominant mark of the same which would attract the

attention of the customer and have a recall value. The said

predominant part of the trademark would, therefore, be

entitled to an equivalent protection from misuse and

violation.”

53.Interestingly, on a closer look at the product of the respondents, it is

seen that the mark “Lotus Splash” is accompanied by the phrase

“conditioning cleanser with lotus and bioflavonoids”. The same clearly

depicts the descriptive character of the respondents’ product is not “Lotus

Splash” but it is the phrase “conditioning cleanser with lotus and

bioflavonoids” below the mark “Lotus Splash”, wherein, characteristic of the

product is sought to be highlighted. It surely means “Lotus Splash”

independently is not indicative of any descriptiveness and since a lotus

cannot be splashed, it follows that if the product is seen from the perspective

of an average consumer it is clear that the words “Lotus Splash” are sought

to be projected/used as a mark.

54.The plea today that “Lotus Splash” is descriptive of face wash cannot

now be taken by the respondents, as the mark of the appellant being “Lotus”

have come to be associated with Classes 3 and 5 of Trade Marks. Further,

the appellant has been in long continuous usage and association with the

mark for the products including face wash. In this regard, we refer to the

FAO (OS) (COMM) 45/2024 Page 51 of 59

case ofProcter & Gamble (supra),the relevant part of the judgment is

reproduced below:-

“10. We have weighed the rival contentions aforesaid and do

not find any merit in this appeal for the following reasons:

xxxx xxxx xxxx xxxx

(xii) Slogans/taglines/expressions though can be descriptive but

are not necessarily descriptive; it cannot however be lost sight

of that the slogan/tagline, if descriptive, does not serve the

purpose for which it is coined and does not justify the high cost

incurred in conceiving and popularizing the same. A distinctive

as compared to descriptive slogan, conveys the company‘s and

the product‘s essence as well as what it aspires to be and

conveys the commercial expression to the consumers. It

promotes memory recall;

(xiii) We are of the view that the argument of, ―ALLROUND

PROTECTION as being descriptive of toothpaste is being raised

today only because of the use of the same for a considerably

long time as a tagline / slogan by the respondent / plaintiff and

the resultant association thereof with the product i.e. toothpaste;

till it was so used, none, from the expression ―ALLROUNDǁ or

―ALLROUND PROTECTION could have associated it with or

held the same as descriptive of a toothpaste;

(xiv) We had in fact during the hearing, in a lighter vein,

enquiredwhether not the word ―ALLROUNDERǁ, in the Indian

context, is connected/associated more with the game of cricket

than in relation to a toothpaste.

(xv) The feeling today, of the words ―ALLROUND

PROTECTION being descriptive of toothpaste could perhaps be

FAO (OS) (COMM) 45/2024 Page 52 of 59

owing to the long usage thereof in relation to a toothpaste and

may not have been so till it was first used in relation to

toothpaste; the test, in our opinion, of descriptive is not of the

day after long/repeated usage of some words in relation to a

good or service, but of the day before such use; we are of the

prima facie view that before the day of first use of the

expression/words ―ALLROUND PROTECTION in relation to a

toothpaste, the same could not have been said to be descriptive

thereof.

(xvi) There is a difference between words/marks which would

classify as descriptive, generally of the goods or services,

whosoever may be provider thereof and words/marks which

communicate the particular/peculiar quality/qualities or

features of product of one and which may not exist or do not

exist in the same product being provided by others. In our

opinion, it is only the former which are not registrable as

trademark and which are not protected, and not the latter. The

words ―marks or indications which may serve in trade to

designate the kind, quality, quantity, intended purposes,

values…of the goods in Section 9(1)(b) cannot be read to

include words/marks which designate the quality, intended

purpose or values, not generic to the goods and services but

unique to the goods of one and which may not be present in the

same goods and services provided by another. Such

words/marks, highlight and communicate to the consumer the

difference claimed from the same goods or services of others,

also available in the market. Of course, such words or marks

would also be, in a sense descriptive of those unique features,

quality, character, intended purpose of goods/services of one;

however they will still classify as distinctive so long as none

other till then has described those as unique to the product.

(xvii) The different manufacturers/suppliers of toothpaste have

attempted to market their product by boasting the feature, either

of being capable of resulting in extra white teeth or as

protecting the gums or as producing a fresh breath. The

respondent / plaintiff on the contrary marketed its product by

FAO (OS) (COMM) 45/2024 Page 53 of 59

highlighting its product as capable of providing ―ALLROUND

PROTECTION and which was further described as, producing

stronger whiter teeth, fresher breath and healthier gums. While

the words stronger whiter teeth, fresher breath and healthier

gums, in our opinion, are descriptive, the expression

―ALLROUND PROTECTION connotes the peculiar quality of

the product of the respondent/plaintiff. Thus the words

―ALLROUND PROTECTION in our view cannot be said to be

descriptive.”

(Emphasis supplied)

55.In light of the above we find that the mark of the respondents even

though may seem descriptive as per the submission of Mr. Krishnan,

however on a closer look it becomes clear that the appellant was the first

user to use the term “Lotus” in relation to cosmetics and that the respondents

seek to take benefit of that association indirectly by incorporating the term

“Lotus” in their product even though they have an existing mark being

“82°E”. The conduct of the respondents have given us a reason to believe

albeit at this nascent stage of the suit, that the products of the respondents

under the umbrella mark of “82°E” are sought to be used as sub marks / sub

brands and since the appellant is an established prior user of the term

“Lotus” and the respondents have consciously not applied for registration of

the sub mark / sub brand “Lotus Splash” in order to take the defence of

descriptiveness.

56.The aforesaid conclusion of ours finds basis in the fact that though the

degree of imagination required may be low to associate “Lotus splash” with

a cosmetic product due to the already existing mark “Lotus”, the same

would not in this case translate to a higher need in respect of competitors

like the respondents herein. Both tests – the Degree of Imagination Test and

FAO (OS) (COMM) 45/2024 Page 54 of 59

the Competitors’ Need Test – which have been laid down byMcCarthy on

Trademarks and Unfair Competitionhave beenreferred to by this Court in

Anil Verma v. R K Jewellers S K Group and Others, 2019 SCC OnLine

Del 8252.Although these tests have been held to be not relevant in view of

the self contained and codified statute being the Trade Marks Act, 1999 but

surely, the interpretation advanced inMcCarthy on Trademarks and Unfair

Competitionwould have a persuasive value.

57.If the terms “Lotus Splash” was a descriptor as it has been argued,

then the phrase “conditioning cleanser with lotus and bioflavonoid” below

“Lotus Splash” would become redundant. The argument of Mr. Lall that,

“Lotus Splash” requires a certain degree of imagination to reach to the

conclusion that the product at hand is a face wash with lotus extracts, is

appealing. We must add that this fact is also known to the respondents

which is why the product bears the description that the product is a facial

cleanser with lotus extracts and bioflavonoids. That apart, the very fact the

phrase “conditioning cleanser with lotus and bioflavonoids” is in smaller

font as against “Lotus Splash” would show that the intent appears to encash

the words “Lotus Splash” as a mark. We find that the trademark of the

respondents “82°E” 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, this surely suggests that the attempt is to make the mark “Lotus

Splash” more prominent than the actual mark of “82°E”. In this regard we

refer to the judgment in the case ofMoroccanoil Israel Ltd.(supra)wherein

it was held as under:-

“A bare perusal of the two products would reveal that the

FAO (OS) (COMM) 45/2024 Page 55 of 59

defendant has used the word “Moroccan Argan Oil” as a trade

mark. Claim of the defendant that it is not using “Morrocan

Argan Oil” as a trademark is clearly belied by the prominent

manner in which “Morrocan Argan Oil” has been written on

the packaging as the same is more prominent than the

defendant’s trademark Salon Professional. Further the

identical colour combination and the manner of writing

“Morrocan Argan Oil” horizontally and the packaging is a

clear copy of the plaintiff’s product.”

58.The Courts while examining two competing marks may not dissect

them and look at them as a whole, but may take cognisance of the dominant

features of the mark. It may be stated that the word “Lotus” is common

within mark/words of the parties. The said word/mark shall surely cause

initial interest confusion, that is, confusion in the minds of the consumers

may arise at a preliminary stage prior to the actual purchase being completed

and such confusion, as held by this Court inUnder Armour Inc. v. Anish

Agarwal & Anr., 2025:DHC:4243-DBat the initial stage is sufficient to

meet the requirement of deceptively similar under Section 29 of the Act. In

fact, there is a positive finding of the learned Single Judge in that regard,

which we have quoted in paragraph 43 above.

59.One of the submissions of Mr. Lall is that the learned Single Judge

did not consider the plea of the appellant/plaintiff that even the words

“Lotus Splash” in conjunction with “Lotus” would also amount to passing

off by the respondents/defendants of their product as the product of the

appellant herein. We have concluded that the usage of the phrase “Lotus

Splash” by the respondents is “use” as a trade mark by the respondents as

per Section 2(2)(c)of the Act and as such the appellant shall be entitled to

the protection under Section 29 and the exception as contemplated under

FAO (OS) (COMM) 45/2024 Page 56 of 59

Section 30(2)(a) of the Act would not be applicable.

60.On the issue of whether a case for the broader remedy of passing off

has been made out or not, given our aforesaidprima faciefinding on the

aspect that the requirements of Section 29 of the Act are fulfilled by the

respondent/defendants and are found to be infringing the mark of the

appellant, we are of the view that the issue may not be required to be gone

into, at this stage. The appellant would be within its right to canvass this

point at the time of final hearing of the suit.

61.Insofar as the judgments in the cases ofMarico Ltd. (supra), Cadila

Health Care Limited v. Gujarat Co-Operative Milk marketing Federation

Ltd. & Ors. ILR (2010) II Delhi 85, Hamdard National Foundation

(supra), Wander (supra)andAce Technologies Corporation (supra)relied

upon by Mr. Krishnan, to support his case are concerned, we are of the

following opinion:

(a)The case of the parties herein is factually different from those in the

case ofMarico (supra)as in that case the mark of the appellant

being “LOW ABSORB” was held to be descriptive since it was

indicative of the characteristics of the product. However, in the

present case, the mark “Lotus Splash” in our consideredprima facie

opinion cannot be held to be descriptive, since the terms “Lotus

Splash” is being exhibited as a trade mark and requires a certain

degree of imagination to come to a conclusion regarding the

characteristics.

(b)Insofar as the reliance in the case ofCadila Healthcare Ltd. v.

FAO (OS) (COMM) 45/2024 Page 57 of 59

Gujarat Co-operative Milk Marketing Federation Ltd. (supra)

wherein the mark in question was “SUGAR FREE” which was also

held to be descriptive and had not acquired distinctiveness. Here in

the case at hand, the scenario is different to the extent that the term

“Lotus Splash” is being used in the trade mark sense, it is not part

of a sentence or a catchy legend so as to describe the characteristic

features of its product. We are unable to agree with the submission

of Mr. Krishnan that, here the label of the respondents is according

to their case accompanied by “Lotus Splash” as well as a second

descriptor “conditioning cleanser with lotus and bioflavonoids” and

lastly one representation of the mark “82°E”. Hence, this judgment

does not aid the case of the respondents.

(c)Suffice to state the facts in the case ofMarico Ltd. (supra)and

Cadila Halth Care Limited v. Gujarat Co-Operative Milk

marketing Federation Ltd. (surpa)are distinguishable, unlike the

facts in this case where an endeavor is made by the

respondents/defendants to use “Lotus Splash” as a mark/sub mark

for the reasons already highlighted by us in the aforesaid

paragraphs.

(d)Whereas the reliance on the judgments in the cases ofWander

(supra)andAceTechnologiesCorp(supra)does not aid the case

of the respondents for the reason that the facts in both the cases are

diametrically different to the present case at hand. The reliance on

the said judgment has been placed to state that there is no perversity

in the impugned judgment. For the reasons stated above we do not

FAO (OS) (COMM) 45/2024 Page 58 of 59

agree with this submission of Mr. Krishnan.

(e)Mr. Krishnan has also relied on the judgment in the case of

Hamdard National Foundation (supra)to state that the phrase

“Lotus Splash” cannot be dissected while examining the issue of

infringement under Section 29. In this regard we refer to the case of

Pernod Ricard India Pvt. Ltd. & Anr. V. Karamveer Singh

Chhabra 2025 SCC Online SC 1701wherein the Supreme Court

has clearly explained the Anti-Dissection Rules and the Dominant

Feature Test. We are of the view that on applications of the settled

position of law including Anti-Dissection Rule, Dominant Feature

Test, Overall Similarity Test and perspective of the Average

Consumer, we hold that the appellant must be granted an injunction

at aprima faciestage.

62.We do not agree on the aspect of the respondents’ case falling under

the exception of Section 30(2)(a) of the Act as discussed by the learned

Single Judge in paragraphs 60 to 81 of the impugned judgment.

63.We allow the application for temporary injunction being I.A. No.

12308/2023 under Order XXXIX Rules 1 and 2 of the CPC in CS (COMM)

454/2023. We grant the prayer for temporary injunction and restrain the

respondents, their directors, partners, owners, dealers, distributors, agents,

stockiest and servants, employees, assigns and all other 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”

FAO (OS) (COMM) 45/2024 Page 59 of 59

derivative marks or any other identical and/or deceptively similar trade

marks to that of the plaintiffs trade mark being “Lotus” whether being used

independently or with any prefix or suffix till the final disposal of the suit.

64.Needless to state that our findings herein are of aprimafacienature

and shall not have any bearing on the final outcome of the suit.

65.This appeal is allowed in the above terms. CM APPL. 14991/2024

seeking a temporary injunction during the pendency of this appeal is

disposed of as having become infructuous.

V. KAMESWAR RAO, J

VINOD KUMAR, J

FEBRUARY 16, 2026

SR/RT