The use of trademarks as keywords in Google Ads has been a topic of legal debate for some time. In a recent judgement of August 10, 2023, the Delhi High Court Division Bench has affirmed that such usage can constitute trademark infringement. The issue before the Division bench was whether the use of trademarks as keywords amouns to the use of those marks as infringement under Section 29 of the Trade Mark Act. This note discusses the intricacies of this legal debate, analysing the implications of using trademarks as keywords in Google Ads rendered in a judgement dated August 10, 2023.
The crucial point of issue emerged from the decision of a single judge, whose interpretation deemed the usage of trademarks as keywords as trademark infringement. This judgment was contested through an appeal filed by Google LLC and Google India Private Limited against DRS Logistics (P) Ltd. and Agarwal Packers and Movers Pvt. Ltd. The court's decision has prompted an examination of whether such usage constitutes trademark infringement or legitimate advertising practice.
Google's Role and the Ads Programme
Google operates both the Google Search Engine and the Google Ads Programme. The Ads Programme functions as a user-friendly advertising platform, allowing advertisers to generate and exhibit online advertisements connected to their websites. The central point of contention revolves around the practice of utilizing registered trademarks as keywords, where advertisers compete for terms to secure prominent ad positioning in search results. Google's defence relies on its interpretation of trademark usage as keywords within the digital realm. Google argued that this practice does not qualify as 'usage' under the Trade Marks Act, and even if it resembles a registered trademark, it does not automatically amount to infringement. Google pointed to the lack of visibility in keywords and differentiated them from meta-tags.
Furthermore, Google invoked the protective provision outlined in Section 79 of the Information Technology Act, positioning itself as an intermediary. It maintained that it operates as a neutral platform, safeguarded from liability concerning content hosted by third parties. Google contended that keywords remain unseen by users and, as a result, do not fulfil the criteria for 'usage' as defined in the Act.
Court's Response: Expanding the Scope of 'Use'
The division bench, as per the findings of the Single Judge, refused to limit the scope of 'use' to merely visual representations. The court emphasized that the use of a mark need not be limited to physical or printed forms. Instead, it highlighted the broad language of the Act, suggesting that 'use' could extend to actions beyond the traditional notions of visual representation.
Interpreting Section 29 of the TM Act
In a thorough exploration of whether utilizing trademarks as keywords constitutes infringement, the court conducted a detailed analysis of Section 29 of the Trade Marks Act. The court ultimately determined that using trademarks as keywords within Google's Ads Programme indeed falls under the category of 'use' in advertising as outlined in Section 29(6) of the Trade Marks Act. The court emphasized that the concept of 'use in advertising' extends beyond the mere visual presentation of the trademark in an advertisement. Rather, the simple act of using a trademark as a keyword to initiate advertisements is indicative of 'use in advertising' as defined within the scope of the Act.
Meta-Tags and Keywords: Parallel Purposes
While Google contended that meta-tags and keywords serve distinct purposes, the court emphasized their parallel functions. Both meta-tags and keywords facilitate the association of websites or links with specific search queries. Whether through organic search results or sponsored links, the goal remains to increase a site's visibility and attract relevant internet traffic.
The Court's Prima Facie Stance on Google's Role
Eclipsing conventional viewpoints, the court decisively discarded the notion that the utilization of trademarks as keywords within the Ads Programme solely constitutes action by advertisers, dissociated from Google's active participation. The court categorically repudiated the foundational premise that Google's involvement is confined to offering tools and technical infrastructure for advertisers to engage keywords. The court endorsed the standpoint that Google actively encourages the use of keywords. Moreover, the court highlighted Google's pivotal role in the auctioning of keywords, including trademarks, a practice which endows Google with a distinct advantage.
The court upheld the finding that Google's use of trademarks as keywords constituted use in advertising under the Trade Marks Act. The court also highlighted that the safe harbour provisions of Section 79 of the IT Act might not shield Google from liability if it was actively involved in infringing activities.
The Delhi High Court Division Bench's ruling is a significant development in the law of trademark infringement in the digital age. It highlights the importance of carefully analysing the nature of online practices and their implications for trademark rights and intermediary liability.
0 Comments