Descriptive Marks Devoid of Secondary Meaning and Common to Trade are Ineligible for Trademark Protection.

The Petitioner, incorporated in 2016, launched "AQUALOGICA" skincare products in 2021.

Respondent No. 1 is the registered proprietor of the trademark "D-TAN" (Registration No. 2065580 in Class 3), applied for in 2010 with a user claim from 2009.

On 14.04.2023, Respondent No. 1 issued a cease-and-desist notice to the Petitioner, alleging that the Petitioner’s product "AQUALOGICA DETAN + DEWY SUNSCREEN" infringed its "D-TAN" mark.

The Petitioner responded that "D-TAN" is a descriptive term common to the trade and subsequently filed this rectification petition under Section 57 of the Trade Marks Act, 1999, seeking removal of the mark from the Register.

1. Whether the Petitioner qualifies as an "aggrieved person" under Section 57 to maintain the rectification petition.

2. Whether the mark "D-TAN" is descriptive of the goods and devoid of distinctive character, making it ineligible for registration under Section 9(1).

3. Whether the mark "D-TAN" has acquired a "secondary meaning" through long and extensive use to overcome the bar of descriptiveness.

Section 57 of the Trade Marks Act, 1999, which allows an "aggrieved person" to seek rectification of the register for marks entered without sufficient cause.

Section 9(1)(a) regarding marks devoid of distinctive character and Section 9(1)(b) regarding marks designating the kind, quality, or intended purpose of goods.

Section 12 regarding "honest concurrent use" as a potential exception to absolute grounds of refusal.

The principle from Hardie Trading Ltd. v. Addison’s Paint and Chemicals Ltd. to define an "aggrieved person".

McArthy on Trademarks and Unfair Competition to evaluate the "descriptiveness" of a mark based on dictionary meanings and industry usage.

The court found the Petitioner to be an "aggrieved person" because the Respondent’s cease-and-desist notice restricted the Petitioner's lawful trade.