We have reached a strange point in trademark law where companies seem to be trying to own the dictionary. Historically, trademarks were not treated like property at all; they were about honesty.
Back in the day, protection was granted primarily to prevent fraud and passing off. The central question was simple: is the defendant misleading the customer? If not, the claim of passing off would fall flat. Companies were, therefore, never given full control over a word or symbol used in trade.
Fast forward to today - as large corporations are starting to claim generic or commonly used words as their own, the classic ‘tragedy of the commons’ begins to unfold.
This idea was popularised by Garret Hardin, an American ecologist. He described it as a situation where individuals having access to public resources, in furtherance of their own interest, start consuming more than their fair share. In doing so, they ultimately deplete the resources for everyone else. Originally, this idea was applied to shared natural resources like land, fisheries, water, etc. However, it can be aptly relevant when applied to language. Words in the public domain are required to describe products, communicate information and compete in the market. In the context of trademark law, this phenomenon may be understood as the ‘tragedy of the linguistic common’, where common words get enclosed as private property by well resourced corporations.
It is within this context that Section 30 of the Trade Marks Act, 1999 assumes a special place. It attempts to strike a balance between trademark rights and linguistic commons. In simple terms, it says you can describe your product - its kind, quality, quantity, intended purpose, value, geographical origin, or time of production - as long as you are doing it honestly.
Despite the presence of safeguards such as Section 30, disputes concerning the use of descriptive or commonly used words continue to play out in modern trademark litigation. Businesses these days adopt an expression that lies somewhere between description and branding. The question, therefore, typically hinges on confusion: is the word merely describing the goods, or has it become a badge of origin?
The latest controversy surrounding the expression 'Lotus Splash' illustrates this perfectly.
The issue emerged when Deepika Padukone's brand 82° E launched a cleanser with 'Lotus Splash' written on it. Lotus Herbals - a veteran with 33 years in the market - sued for infringement, claiming that 82°E was attempting to free ride on its hard-earned reputation. In response, 82°E leaned on Section 30, which permits descriptive use. It argued that the product actually contained lotus, so it qualified as fair descriptive use. While the lower court ruled in favour of 82°E, the appellate court reversed course, concluding that ‘Lotus Splash’ was more than just an ingredient.
In analysing the case, the Court (at paragraph 57) found merit in the ‘Imagination Test’ - meaning how much imagination is required to connect the word with the product. A term is descriptive if it directly describes the product's characteristics. If some sort of imagination is required to form the link, the term is treated as merely suggestive. The Court observed that since a lotus cannot be splashed, it requires a certain degree of imagination to come to a conclusion regarding the characteristics. Consequently, Section 30 can't be claimed as fair descriptive use.
This sets the bar too low. Under this logic, even evocative description, especially when prominently placed, would be placed under a suggestive mark, leaving no room for creative or evocative language that appeals to today's consumers.
But in a beauty aisle where lotus is a common ingredient and words like splash, glow and refresh are seen on every shelf, does the consumer really need a leap of imagination? Placing it under a suggestive mark shrinks the scope of Section 30 and ignores market reality. A consumer doesn't encounter a product in a vacuum; rather, marks are experienced in a broader commercial setting, shaped by the packaging, brand identity and pricing of the product, rather than by dictionary meaning alone.
However, the problem is not one-sided. Modern brands are getting smarter. They deliberately pick an expression that lies between descriptive and a brand identifier so that they can communicate the product's quality while still functioning as a brand identifier. It’s a clever bit of strategy: they enter the market under the guise of descriptive use, only later to assert exclusivity. Section 30 is becoming a temporary shield that drops as soon as they are strong enough to gatekeep the words themselves. It is perhaps this very possibility that makes courts sceptical of extending Section 30 too far.
Even if we move past the dictionary definitions, the Court’s reliance on consumer psychology introduces another layer of complication. Another major hurdle is ‘Initial Interest Confusion Test’, which suggests that even if the consumer realises the difference before checkout, the initial hook was enough to infringe. This idea was basically established to prevent misuse of the reputation and goodwill of a well-established brand. It is increasingly finding its way into Indian trademark jurisprudence. Should mere momentary attraction be decisive? In the case of 'Lotus Splash' some initial association is obvious, but that alone can't negate other essential factors like price segment, customer base and overall presentation.
82°E and Lotus Herbals operate in completely different market spaces with substantial price variance. A customer accustomed to buying a ₹200 facewash is unlikely to buy a ₹1,200 facewash merely because it briefly caught their attention. At some point, a line must be drawn. Following this test too religiously results in too wide a protection for big players. If every ingredient is captured because of long use and if it triggers momentary recognition which results in infringement, Section 30 would become shallow. This would emphasise that a new brand's right to describe its product is secondary to established brand’s rights to protect the consumer's first impression.
In the Lotus Splash case, the Court was particularly wary of the fact that the phrase was placed prominently at the top of the bottle, while the house mark ‘82°E’ was relegated to the base. Ingredients-based branding across industries is becoming the new way of marketing. Our generation is increasingly aware and conscious of product ingredients. This shift has encouraged brands to increasingly rely on highlighting ingredients on the front of their packaging as a strategy to capture eyeballs. From food and beverages to pharmaceutical and skin care products, terms like green tea, honey-infused and rice water are demonstrated prominently on packaging to signal the quality of the product. This is gradually blurring the line between branding and ingredient demonstration. Over time, this could create another problem where a proprietor begins to claim trademark rights over an expression that is descriptive merely because it is predominantly placed. The case of Lotus Splash illustrates this problem where persistent ingredient-based use can take the form of trademark enforcement. At the same time, brands shouldn’t be stripped of the ability to refer to the ingredients of their product, as it is essential to walk with the pace of the market.
At its heart, however, this isn’t just about price points or marketing strategies; it’s about who gets to ‘own’ the natural world. Nature itself supplies a large part of the vocabulary used in modern commerce. Words like lotus, sandal, neem, aloe vera among others are used across various industries from cosmetics to medicine. These expressions carry cultural significance and are a part of our shared heritage. A word like Lotus, for instance, is not just a botanical name but also the national flower of India. It appears widely across art, literature and everyday language. Granting exclusive control over such a word poses a serious risk of monopolisation of every cultural symbol over time. Such words can't lose their primary meaning and attain an alternate commercial meaning merely because of prolonged use.
This principle is a well-settled jurisprudence. In Geep Flashlight Industries v. Registrar of Trade Marks, (1972), the Court refused to grant exclusivity over the word ‘janta’ (people), even if the mark acquired hundred percent distinctiveness, it is not conclusive. A manufacturer is not entitled to a monopoly of a laudatory or descriptive epithet, the Court held.
Similarly in the case of the Imperial Tobacco Co of India v. The Registrar of Trade Marks (1977), the Court protected the word ‘Simla’ (the capital of Himachal Pradesh) from being caged. This reasoning underlines judicial reticence to allow common vocabulary to be caged for private gain.
If a word is a national symbol or part of our common heritage, it should be highly considered as 'fair commercial use’ under Section 30, because no single person can claim to create the appeal of that word.
Modern branding is completely different. Ingredients are not just a disclaimer but are selling points. If Section 30 can’t protect what is in the bottle, then it will remain of no significance. The new era demands a new application. When a word used is (i) common in trade, (ii) has cultural significance and (iii) is an actual ingredient, the presumption should be favouring descriptive use. The burden must shift to the person asserting the trademark right. The need of the hour is to restore the balance that Section 30 seeks to strike. Some words like lotus, neem, tiger, mango are too central to language and culture to be fenced off. At some point, trademark law has to remember that it was meant to protect consumers, not privatise the language they rely on.
Prachi is a student at Law Centre 2, University of Delhi.