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The Delhi High Court has rejected the plea for an interim injunction by Lotus Herbal Private Limited against Deepika Padukone‘s company using the mark ‘Lotus Splash‘ for a facewash or face cleanser product. The court, presided over by Justice C Hari Shankar, emphasized that no prima facie case of passing off exists in this matter, particularly as the only commonality between the plaintiff’s and defendant’s mark is the word “lotus.”
The court highlighted the dissimilarity in appearance and significant price differences between the products. It reasoned that consumers using these products would easily discern the distinction between “Lotus Splash” and the plaintiff’s lotus family of products. The court concluded that there is no attempt by the defendants to pass off their product as that of the plaintiff.
Lotus Herbal Pvt Ltd, the plaintiff, asserted that all its products are sold under the LOTUS mark and that this mark has become indelibly associated with their brand since 1993. Senior Advocate Akhil Sibal, representing the plaintiff, argued that the use of “Lotus Splash” constitutes infringement of the registered LOTUS mark and misrepresents the defendant’s product as being associated with the plaintiff.
In response, Senior Advocate Dayan Krishnan, representing Deepika Padukone’s firm, argued that Section 30(2)(a) does not encompass “use in the trademark sense.” He further contended that the defendants are entitled to the benefit of Section 35, emphasizing that they consistently use the 82oE mark on all cosmetic products. He asserted that there is no lack of bona fides in this regard.
The court, in its order, stated that the use of the mark ‘Lotus Splash’ falls under Section 30(2)(a), which deals with situations where the use of a registered trademark by a party does not constitute infringement. The court noted that the use of “Lotus” in “Lotus Splash” signifies the characteristic of the product, containing lotus flower extract. Consequently, such use does not infringe the plaintiff’s registered Lotus formative trademarks, nor does it amount to passing off.
Senior Advocate Dayan Krishnan, along with a team of advocates, represented Deepika Padukone’s DPKA Universal Consumer Ventures Private Limited and others (defendants) during the proceedings.
The Supreme Court on Monday directed a Madhya Pradesh-based company which manufactures and sells whisky under the trade mark ‘London Pride’ to inform if it was willing to change the trade dress and colour of its product as they were similar to liquor major Pernod Ricard India Pvt Ltd’s ‘Blenders Pride’ and ‘Imperial Blue’ whisky.
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