In a trademark infringement action, if the rival marks are nearly identical in sound and structure to a registered mark, the defendant’s use of added matter such as a house mark or a prominently displayed “sub-brand” does not save it. A defendant cannot rely on the “descriptive use” defence under Sections 30(2)(a) and 35 of the Trade Marks Act if the words are used as the name of the product, and not merely to describe it. A stricter standard of confusion applies to medicinal products, and delay by itself is no defence to infringement unless the plaintiff positively acquiesced.
The Delhi High Court has restrained Menarini India and Alaina Healthcare from selling their skin serum under the name “ACNE SCAR”, holding, prima facie, that it infringes Mankind’s registered trademark ACNESTAR. The two marks differ by only one letter and sound almost the same. Mankind Consumer Products owns ACNESTAR, registered in 2005 for an acne gel and also used for soaps and face washes, with total sales of about Rs 540 crore.
The defendants sell HEXILAK ACNE + SCAR, a serum for acne scars made in Baddi, and said that they have used the name since August 2022. They argued that the plaintiff had hidden material facts and hidden the date from which the product was sold, that “acne” and “scar” are ordinary words, that the real brand is HEXILAK and MENARINI, and that “ACNE + SCAR” only describes what the product does. They also pointed out that the products are different, since the gel is a prescription antibiotic for active acne and the serum treats scars after acne. Justice Purushaindra Kumar Kaurav rejected each plea. He said that the error in the plaint, which gave May 2025 as the sale start date, was inadvertent since the plaintiff itself filed a document showing a 2024 review, and it did not affect the issue of infringement. Relying on a Division Bench ruling in Mankind Pharma v. Brinton Pharmaceuticals (2025), which found ACNESCAR and ACNESTAR “phonetically nearly identical”, he held that the comparison must be of the marks as a whole. The shared part is not just the word ACNE but nearly the whole word, and one cannot dissect it, since the average buyer with imperfect memory does not. Adding HEXILAK and MENARINI makes no difference, as ACNE + SCAR is the most prominent text on the pack and works as a sub-brand. The “descriptive use” defence under Sections 30(2)(a) and 35 fails because the words are used as the product’s name, shown on listings as “Hexilak Acne Scar Serum”. The two products are allied goods sold through the same channels, and for medicines, a stricter test applies. The court said that delay is no defence to infringement, and that, balancing convenience, the injunction would not stop sales under HEXILAK, only the use of the name. The court gave the defendants two months to recall stock and delist products, listing the case on 2 March 2027.
This is only an interim, prima facie decision, and the court said that its remarks do not decide the merits. The defendants may still describe their product as a “serum for acne scars” in the ordinary descriptive sense, and the injunction does not stop sales under the HEXILAK name. The court granted two months only to recall existing stock, and not to continue manufacturing or selling under the impugned name.
Citation: Mankind Consumer Products Private Limited v. Alaina Healthcare Private Limited & Anr., CS(COMM) 280/2026 (I.A. 7346/2026), Delhi High Court (Justice Purushaindra Kumar Kaurav), decided on 16.10.2026 | 2026:DHC:9367
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