Use of Google Keyword Does Not Constitute Infringement of Trademark
Introduction:
The intersection of trademark law and digital advertising has given rise to several contentious issues, one of which revolves around the use of trademarks as keywords in online advertising platforms like Google Ads. The recent judgment by the Hon'ble High Court of Delhi in the matter of Booking Netherlands and Booking India vs. MIPL provides significant clarity on this subject.
Background:
The Respondent/Plaintiff sought a mandatory injunction against the Defendants, requiring them to refrain from using MIPL’s word trademarks as keywords in the Google Ads Program. The crux of the dispute was the alleged infringement of the mark ‘MakeMyTrip’ by using it as a keyword in the said program.
The Single Judge’s Order:
On 27th April 2022, the Hon'ble Single Judge, in Suit CS Comm No. 268 of 2022, granted an injunction restraining the Defendants from using the mark ‘MakeMyTrip’ as a keyword, with or without spaces, on the Google Ads Program. This order was based on the presumption that such use could lead to trademark infringement.
The Division Bench’s Analysis:
However, the Division Bench of the High Court of Delhi took a divergent view and set aside the Single Judge’s order. The Bench emphasized that the mere use of a trademark as a keyword in an online advertising program does not amount to trademark infringement. The core reasoning behind this conclusion is rooted in the fundamental principles of trademark law and its application in the digital era.
Analysis:
Nature of Trademark Infringement:
Trademark infringement traditionally occurs when a third party uses a mark in a manner that creates a likelihood of confusion among consumers regarding the origin of goods or services. The use of a trademark as a keyword, however, does not necessarily lead to such confusion. When users search for a particular keyword, they are presented with a list of results, and there's no guarantee that the advertised product or service originates from the trademark owner.
No Direct Application to Material:
The Court rightly observed that the use of a trademark as a keyword does not involve its application on any material for labeling, packaging, or advertising goods/services. Both Google and the advertiser do not physically apply the trademark to any material. Instead, the keyword merely triggers an algorithm that displays relevant advertisements.
Digital Landscape and Consumer Understanding:
In the digital age, consumers are accustomed to seeing multiple results when they search for a particular term. They can distinguish between organic search results and paid advertisements. Hence, the mere appearance of a trademark as a keyword does not inherently mislead consumers about the origin of goods or services.
Precedents and International Perspective:
Courts worldwide have grappled with the issue of keyword advertising and trademark infringement. Many jurisdictions, like the European Union, have adopted a nuanced approach, emphasizing the importance of consumer perception and the absence of direct confusion. The Delhi High Court's decision aligns with this global trend, recognizing the distinct nature of online advertising.
The concluding Note:
The Hon'ble High Court of Delhi's judgment in Booking Netherlands and Booking India vs. MIPL provides a balanced and forward-thinking approach to the evolving challenges posed by digital advertising in the realm of trademark law. By distinguishing between traditional notions of trademark infringement and the realities of online advertising, the Court has ensured that legal principles remain relevant and adaptable to technological advancements.
The Case Law Discussed:
Case Title: Google LLC Vs Make My Trip India Pvt. Ltd.
Date of Judgement/Order:14.12.2023
Case No. FAO(OS) (COMM) 147/2022
Neutral Citation No:2023:DHC;8960-DB
Name of Hon'ble Court: Delhi High Court
Name of Hon'ble Judge: Vibhu Bakhru and Amit Mahajan HJ
Disclaimer:
Ideas, thoughts, views, information, discussions and interpretation expressed herein are being shared in the public Interest. Readers' discretion is advised as these are subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue involved herein.
Written By: Advocate Ajay Amitabh Suman,
IP Adjutor - Patent and Trademark Attorney
Ph No: 9990389539
