By Vohra & Vohra
In a significant decision reinforcing one of the foundational principles of trademark law, the Delhi High Court recently directed the cancellation of the trademark “D-TAN” registered in favour of Visage Beauty and Health Care Pvt. Ltd., the company behind the well-known skincare brand O3+. The Court held that the expression “D-TAN” is descriptive of the nature and intended purpose of skincare products and therefore lacks the distinctiveness required for trademark protection under the Trade Marks Act, 1999. The rectification petition had been filed by Honasa Consumer Ltd., the parent company of Aqualogica, after it was accused of infringing the registered mark through its product “Aqualogica Detan + Dewy Sunscreen.”
The judgment is significant not merely because it concerns two prominent players in India’s beauty and personal care industry, but because it revisits a recurring question in trademark law: Can a business claim exclusive rights over a term that directly describes the function or purpose of its products?
The Delhi High Court answered that question in the negative and, in doing so, reaffirmed the principle that trademark law protects source identifiers—not descriptive language that competitors may legitimately require in the ordinary course of trade.
The Background of the Dispute
The controversy arose when O3+ asserted trademark rights over the mark “D-TAN” and issued a cease-and-desist notice to Honasa Consumer alleging infringement. Honasa disputed the claim and contended that “D-TAN” and “DETAN” were common industry expressions used to describe products intended to remove tanning or reduce the effects of sun exposure. Consequently, Honasa approached the Delhi High Court seeking rectification and cancellation of the trademark registration.
Before the Court, Honasa argued that the expression was inherently descriptive. Breaking the word into its components, it submitted that “de” signified removal and “tan” referred to skin tanning. Therefore, the term merely communicated the intended purpose of the product rather than indicating a particular commercial source. Evidence was also placed before the Court to demonstrate widespread industry use of “DETAN” and similar expressions by numerous skincare manufacturers.
O3+, on the other hand, argued that it had adopted the mark as early as 2009 and had continuously used it for over fifteen years. It further contended that substantial sales figures and extensive commercial success had resulted in the mark acquiring distinctiveness and secondary meaning in the marketplace.
The Court’s Analysis of Distinctiveness
Justice Tushar Rao Gedela approached the dispute by examining whether “D-TAN” was capable of functioning as a trademark within the meaning of the Trade Marks Act.
The Court noted that trademark law fundamentally distinguishes between distinctive marks and descriptive expressions. While arbitrary, fanciful, and invented marks are inherently capable of protection, descriptive terms face a much higher threshold because they communicate information about the characteristics, purpose, quality, or intended use of goods.
Upon examining dictionary meanings, industry usage, and the manner in which the term was employed across the skincare sector, the Court concluded that “D-TAN” directly described products intended for tan removal. The expression therefore conveyed the very function of the goods rather than their commercial origin. As a result, it fell squarely within the prohibition contained in Section 9(1)(b) of the Trade Marks Act, which bars registration of marks that consist exclusively of indications describing the kind, quality, intended purpose, or other characteristics of goods.
The Court observed that when consumers encounter the expression “D-TAN” on skincare products, they immediately understand it as a reference to tan removal rather than as a badge of origin identifying a particular manufacturer. This finding proved decisive in determining that the mark lacked inherent distinctiveness.
Commercial Success Is Not the Same as Acquired Distinctiveness
Perhaps the most important aspect of the judgment lies in the Court’s treatment of the argument regarding acquired distinctiveness.
O3+ relied heavily upon evidence of substantial sales figures and long-standing use of the mark. However, the Court drew an important distinction between commercial success and trademark distinctiveness.
The Court held that financial performance, turnover figures, and Chartered Accountant certificates may demonstrate market success, but they do not automatically establish that consumers associate a descriptive term exclusively with a single source. To establish acquired distinctiveness, a proprietor must show that the relevant public has come to perceive the expression primarily as a trademark rather than as a descriptive indication.
The Court found no convincing evidence demonstrating that consumers identified “D-TAN” exclusively with O3+ products. Significantly, it also noted that O3+ itself prominently displayed its house mark “Professional O3+” on product packaging, while “D-TAN” appeared in a comparatively descriptive manner to indicate the nature of the product. This, according to the Court, weakened the argument that “D-TAN” functioned as an independent source identifier.
The ruling serves as an important reminder that acquired distinctiveness is a demanding evidentiary standard and cannot be established merely through proof of sales or longevity of use.
Preserving Fair Competition in the Marketplace
The judgment reflects a broader policy objective underlying trademark law.
Trademark protection exists to prevent consumer confusion and protect commercial goodwill. However, it is not intended to grant monopolies over language that competitors may reasonably need to describe their products. If descriptive terms such as “D-TAN” were permitted to remain exclusively appropriated by a single trader, competitors would face an artificial restriction in accurately communicating the purpose and characteristics of their products.
The Court’s reasoning therefore aligns with the fundamental principle that descriptive language should generally remain available for use by all market participants. This principle is particularly relevant in the cosmetics and skincare industry, where product categories and functions are frequently communicated through descriptive terminology.
By directing cancellation of the registration, the Court ensured that ordinary descriptive expressions remain part of the public domain rather than becoming the exclusive property of a single market participant.
The Emerging Trend in Delhi High Court Jurisprudence
The decision also forms part of a growing judicial trend within Indian trademark law.
In recent years, the Delhi High Court has demonstrated increasing scrutiny towards registrations of descriptive and non-distinctive marks. Courts have shown a willingness to revisit registrations where terms that should ordinarily remain available to trade participants have been granted exclusivity despite lacking inherent distinctiveness.
The present ruling reinforces the principle that registration alone does not create an invincible right. Even a registered trademark may be vulnerable to rectification if it is shown to have been registered contrary to the statutory requirements governing distinctiveness.
The judgment therefore strengthens the integrity of the trademark register by ensuring that exclusive rights are reserved for marks genuinely capable of distinguishing one trader’s goods from another’s.
Conclusion
The Delhi High Court’s decision in Honasa Consumer Ltd. v. Visage Beauty and Health Care Pvt. Ltd. is an important reaffirmation of a core principle of trademark law: descriptive terms cannot ordinarily be monopolised. By directing the cancellation of the “D-TAN” trademark, the Court has reinforced the distinction between commercial branding and descriptive language while preserving fair competition within the marketplace.
For businesses, the judgment serves as a cautionary reminder that brand-building efforts should focus on creating distinctive source identifiers rather than relying upon descriptive expressions. For trademark practitioners, it underscores the continuing importance of distinctiveness as the cornerstone of trademark protection. Most importantly, the ruling demonstrates that the courts remain committed to maintaining a careful balance between protecting legitimate goodwill and preventing the privatization of language that competitors require for honest commercial communication.