Skincare Brands Cannot Claim Monopoly Over Descriptive Words Like “D-TAN”, Says Delhi High Court

High Sales and Long Use Alone Cannot Establish Secondary Meaning Without Evidence That Consumers Exclusively Associate the Descriptive Term With One Business

The Delhi High Court has ordered the cancellation of the registered trademark “D-TAN” for cosmetic and skincare products, holding that the expression directly describes the nature and intended purpose of products used to remove or reverse skin tanning.

Justice Tushar Rao Gedela held that “D-TAN” was descriptive, lacked inherent distinctiveness and appeared to be common to the cosmetics trade. The Court further found that the trademark proprietor had failed to establish that the expression had acquired a secondary meaning exclusively associated with its products.

Allowing the rectification petition filed by Honasa Consumer Ltd., the Court directed the Registrar of Trade Marks to cancel and remove the registration of “D-TAN” from the Trade Marks Register within four weeks.

Background

Visage Beauty and Health Care Pvt. Ltd. applied for registration of the word mark “D-TAN” in Class 3 on 9 December 2010, claiming use since 1 December 2009. The application was eventually registered on 30 January 2018 for cosmetic products.

Honasa Consumer Ltd., which markets skincare products under the brand “AQUALOGICA,” launched products including “AQUALOGICA DETAN + DEWY SUNSCREEN.”

In April 2023, Visage issued a cease-and-desist notice alleging that Honasa’s use of “DETAN” infringed its registered trademark “D-TAN.”

Honasa denied the allegation and contended that “D-TAN” or “DETAN” was a commonly used descriptive expression referring to the removal of tanning from the skin. It subsequently approached the Delhi High Court under Section 57 of the Trade Marks Act, 1999, seeking cancellation and rectification of the registered mark.

Honasa’s Arguments

Honasa argued that “D-TAN” was incapable of functioning as an indication of commercial origin because consumers would understand the expression as describing the function of a skincare product.

It submitted that the prefix “de” commonly signifies removal or reversal, while “tan” refers to the browning of skin caused by exposure to sunlight. When combined, “de-tan” simply conveys the removal or reversal of tanning.

Honasa also placed on record several examples of third-party skincare products using “DETAN,” “DE-TAN” and similar expressions. It argued that manufacturers across the cosmetics industry used the term descriptively in the same manner as expressions such as “hydrating,” “exfoliating,” “glow” and “radiance.”

It further pointed out that Visage prominently displayed the mark “PROFESSIONAL O3+” on its packaging, while “D-TAN” appeared with expressions such as “Blueberry,” “Cranberry” and “Oxy.” According to Honasa, this showed that Visage itself used “D-TAN” to describe a category or function of its products rather than as their primary source identifier.

Trademark Proprietor Claims Long Use and Reputation

Visage defended its registration by arguing that “D-TAN” was a unique, catchy and memorable expression coined by it in 2009.

It claimed continuous use of the mark for approximately 15 years and stated that sales under “D-TAN” had increased from approximately ₹13.25 lakh in 2009-10 to around ₹51.8 crore in 2023-24.

Visage also relied on promotional expenditure, advertisements, online sales and social-media visibility to argue that the mark had acquired immense reputation and secondary meaning.

It further claimed that numerous parties had agreed not to use “D-TAN” following legal proceedings and notices initiated by it. According to Visage, these actions demonstrated that the mark was recognised as its exclusive source identifier.

Visage also objected to the maintainability of Honasa’s petition, pointing out that Honasa had itself applied for registration of the composite mark “AQUALOGICA DETAN + DEWY SUNSCREEN.”

Registrar Had Originally Objected to the Mark

The High Court examined the circumstances in which “D-TAN” had been registered.

The Trade Marks Registry had initially objected to the application under Sections 9(1)(a) and 9(1)(b) of the Trade Marks Act on the ground that the mark lacked distinctive character and consisted of an indication capable of describing the kind, quality or intended purpose of the goods.

The Court found that Visage’s response to the examination report did not adequately answer these objections.

Visage had claimed that the mark was represented in a distinctive label containing artistic features. The Court, however, noted that the application concerned a word mark and not a particular artistic label. Distinctive styling or artistic presentation could not, therefore, establish the inherent distinctiveness of the registered word “D-TAN.”

The Court concluded that Visage had provided no satisfactory justification for overcoming the objections originally raised under Sections 9(1)(a) and 9(1)(b).

Reliance on Honest Concurrent Use Weakened Claim of Exclusivity

Visage had also relied upon Section 12 of the Trade Marks Act while seeking registration. Section 12 permits registration of identical or similar trademarks by more than one proprietor in cases of honest concurrent use or other special circumstances.

The Court described Visage’s reliance on Section 12 as the “Achilles heel” of its case.

It observed that a person relying on honest concurrent use effectively acknowledges the possibility that identical or similar marks may be used or registered by more than one proprietor for the same or similar goods.

Such reliance was inconsistent with Visage’s later attempt to claim complete exclusivity over the descriptive expression and prevent other traders from using “DETAN” for skincare products.

“D-TAN” Directly Describes Removal of Skin Tan

The Court considered the dictionary meanings of the components “de” and “tan.”

The prefix “de” signifies removal, reduction or reversal. The word “tan” refers to a brownish skin colour developed following exposure to sunlight.

When used together in relation to skincare products, “D-TAN” or “DETAN” directly communicates that the product is intended to remove or reverse tanning of the skin.

The Court held that no imagination, mental process or further explanation was required for a consumer to understand this meaning.

Accordingly, “D-TAN” directly described the nature, quality and intended purpose of the relevant cosmetic products and fell within the prohibition contained in Section 9(1)(b) of the Trade Marks Act.

Industry-Wide Use Confirmed Descriptive Character

The judgment also examined how the expression was used across the cosmetics industry.

Several manufacturers used “DETAN” or its variations alongside their primary trademarks to describe face washes, creams, masks, serums, sunscreens and related products.

The Court observed that industry usage is an important indicator of whether consumers understand an expression as a trademark or merely as a description of the product.

The extensive third-party use showed that “D-TAN” was understood as identifying the type, purpose or expected effect of the product rather than a single commercial source.

The Court therefore concluded that the expression was not only descriptive but also appeared to be common to the trade.

Visage’s Own Packaging Treated “D-TAN” as a Descriptor

The Court also relied upon the manner in which Visage used the term on its own products.

Its packaging prominently displayed “PROFESSIONAL O3+,” while “D-TAN” appeared in a smaller font and was frequently combined with words such as “Blueberry,” “Cranberry” and “Oxy.”

According to the Court, this presentation indicated that “D-TAN” was being used to explain the nature or function of the product rather than to independently identify Visage as its commercial source.

The proprietor’s own descriptive use of the expression reinforced the conclusion that it was not functioning as a distinctive trademark.

Commercial Success Does Not Automatically Prove Secondary Meaning

Visage argued that even if “D-TAN” was originally descriptive, its long use, substantial sales and promotional expenditure had caused it to acquire secondary meaning.

The Court accepted that a descriptive expression may, in appropriate cases, obtain trademark protection where extensive use causes consumers to exclusively associate it with one particular business.

However, commercial success alone is not sufficient.

Visage had produced Chartered Accountant certificates showing sales and revenue generated from products sold under “D-TAN.” The Court held that these documents could establish the commercial success of the products, but they did not prove how consumers understood the expression.

There was no consumer survey, market study or other evidence demonstrating that members of the public, upon encountering “D-TAN,” immediately and exclusively associated it with Visage and no other manufacturer.

The Court therefore refused to accept that the descriptive expression had acquired secondary significance merely because the products had achieved substantial sales.

Honasa Was an “Aggrieved Person”

The Court also upheld Honasa’s standing to file the rectification petition.

Visage’s cease-and-desist notice sought to restrain Honasa from using “DETAN” on its products. Since the expression was found to be descriptive, the continued registration would restrict Honasa’s lawful trade and prevent it from describing the nature and function of its products.

Honasa was therefore an “aggrieved person” entitled to seek rectification under Section 57 of the Trade Marks Act.

Decision

The Delhi High Court allowed Honasa’s petition and directed the Registrar of Trade Marks to:

• cancel the registration of the word mark “D-TAN” bearing Application No. 2065580 in Class 3;
• remove and rectify the registration from the Trade Marks Register; and
• complete the exercise within four weeks of receiving the order.

No order as to costs was passed.

Key Legal Principle

A term that directly describes the nature, function, quality or intended purpose of a product cannot ordinarily be monopolised as a trademark.

Long use, significant turnover and advertising expenditure may demonstrate commercial success, but they do not by themselves establish acquired distinctiveness. The proprietor must produce evidence showing that consumers exclusively associate the descriptive expression with its goods.

Why the Judgment Matters

The ruling is particularly significant for businesses operating in the cosmetics, wellness and consumer-products industries, where expressions describing product effects are frequently incorporated into packaging and advertising.

Terms such as “de-tan,” “hydrating,” “brightening,” “anti-ageing” or “exfoliating” ordinarily communicate the nature or intended result of the product. Granting exclusive rights over such language may unfairly prevent competitors from accurately describing their own goods.

The judgment reinforces the principle that trademark law protects indicators of commercial origin—not words that traders legitimately require to explain what their products do.

Case: Honasa Consumer Ltd. v. Visage Beauty and Health Care Pvt. Ltd. & Another
Court: High Court of Delhi
Case Number: C.O. (COMM.IPD-TM) 215/2023
Judge: Justice Tushar Rao Gedela
Date: 19 June 2026
Result: Rectification petition allowed; “D-TAN” trademark registration cancelled and ordered to be removed from the Register

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