Using ACNE+SCAR as a product name infringes ACNESTAR despite its descriptive elements and accompanying house mark.

The plaintiff claimed rights in the registered word mark ACNESTAR, registered in Class 5 from 25 April 2005, and relied on an assignment to it dated 19 February 2025.

It alleged continuous use since 2005 and substantial sales under the mark.

Defendant No. 1 manufactured and Defendant No. 2 marketed a serum sold as HEXILAK ACNE + SCAR. The defendants claimed use from 2022 and argued that “ACNE + SCAR” described the product’s purpose.

The plaintiff sought an interim injunction under Order XXXIX Rules 1 and 2 CPC. An ex parte injunction initially granted on 20 March 2026 was kept in abeyance by the Division Bench pending fresh consideration after the defendants’ reply. The Court heard the application afresh and considered the defendants’ objections concerning concealment, delay, similarity, and descriptive use.

1. Whether the plaintiff had established a prima facie case that the defendants’ use of ACNE SCAR / ACNE + SCAR / ACNESCAR infringed the registered mark ACNESTAR

2. Whether the defendants’ use was protected as a bona fide descriptive use under Sections 30(2)(a) and 35 of the Trade Marks Act, 1999

3. Whether alleged concealment, delay, and the balance of convenience disentitled the plaintiff to interim relief

Under Order XXXIX Rules 1 and 2 CPC, interim injunctive relief may be granted where the applicant establishes a prima facie case, balance of convenience, and irreparable injury.

Sections 28 and 29(2)(b) of the Trade Marks Act protect a registered proprietor against use of an identical or deceptively similar mark likely to cause confusion; Section 31 makes registration prima facie evidence of validity.

Sections 30(2)(a) and 35 protect use that is genuinely descriptive, rather than use as a trade mark.

Under Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, where essential features of a registered mark are adopted, added matter or differences in get-up do not answer an infringement claim.

Amritdhara Pharmacy v. Satya Deo Gupta requires assessment from the perspective of an unwary purchaser of average intelligence and imperfect recollection.

Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. and Glenmark Pharmaceuticals Ltd. v. Sun Pharma Laboratories Ltd. require particular caution in assessing confusion involving medicinal products.

Under Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, delay alone does not ordinarily defeat an injunction in an infringement case, particularly where adoption appears dishonest.

A party seeking discretionary relief must disclose material facts, but only suppression material to determination of the lis may disentitle it from relief.

The Court treated the plaintiff as prima facie entitled to sue under the assignment and considered the subsisting registration evidence of validity.

It found that the rival marks differed by only one letter and were nearly indistinguishable phonetically; “ACNE + SCAR” was also prominently used to identify the product, while “SERUM FOR ACNE SCARS” separately described it. The use therefore appeared to be product branding, not merely descriptive use, and the addition of HEXILAK and MENARINI did not remove the prima facie similarity.

The Court also considered the goods allied and cognate, sold through overlapping channels, and applied the stricter confusion standard relevant to medicinal products.

It rejected the concealment objection as the discrepancy about the commencement of use was not material enough to bar consideration on the merits, and found no proof of earlier knowledge or acquiescence by the plaintiff.

Although the defendants claimed sales from 2022, the Court concluded that the plaintiff’s earlier registration and the limited change required to adopt a different product name favoured the plaintiff on balance of convenience; continued infringement and the public interest in avoiding confusion supported irreparable injury.

Until final adjudication, the defendants and those acting on their behalf were restrained from dealing in pharmaceutical, medicinal, skin-care, or allied or cognate goods under ACNE SCAR, ACNE + SCAR, ACNESCAR, or any other mark deceptively similar to ACNESTAR.

The injunction operated forthwith. Defendant No. 2 was given two months to recall existing stock and withdraw listings, but that period did not permit further manufacture, advertising, offering for sale, or supply under the impugned mark.

The Court clarified that its findings were prima facie and would not determine the merits at trial.