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Informist, Thursday, Jul. 9, 2026

 

NEW DELHI – Google LLC. and Google India Pvt. Ltd. have moved the division bench of the Delhi High Court against its single-judge bench ruling that the search engine giant infringed other companies' trademark through its Google Ads programme. The single-judge bench of Justice Mini Pushkarna had in May held that Google sold the trademark of companies to their direct competitors for use as a keyword in Google Ads programme, without seeking permission from the companies, for the purpose of earning revenue, which amounts to trademark infringement. The division bench of Justice V. Kameswar Rao and Justice Manmeet Pritam Singh Arora will hear Google's case on Friday.

 

In its order, the single-judge bench had asked Google to pay damages to Hindware Ltd., whose trademark the search engine giant had sold to competitors so that the latter's website could appear first when searching for Hindware name. Justice Pushkarna had permanently restrained Google from using Hindware's trademark or any its combination as part of advertising keywords in its Google Ads programme, which amounted to infringement. Challenging the single judge's order, Google moved the division bench.

 

Google said its trademark policy in India does not restrict the use or bidding of trademarks as keywords to display an advertisement. Only where the advertiser has included a third-party's registered trademark in its AdText, Google restricts the advertisement, upon intimation by a complaint, Google said. It does not earn any revenue from mere display of an advertisement under the Google Ads Programme, and this depends upon the cost-per-click on the advertiser's website, Google said.

 

The use of words is imperceptible to the consumer and cannot be held to be used as a trademark. As such, a use cannot convey to the consumer about the origin or source of the goods and services, said Google. Therefore, since the use of trademarked terms as keywords on Google Ads cannot be perceived by consumers in any manner, it does not meet the test of infringement under the Trade Marks Act, it said.

 

Where the advertisement is shown to provide alternatives to the consumer, it cannot be regarded as other companies getting unfair advantage without due cause, said the search engine giant. The inclusion of trademarks as keywords in the Google Ads Programme does not per se amount to taking an unfair advantage of the trademark without cause, and cannot be construed as being detrimental to the distinctive character or repute of the trademark, it said.    

 

The search engine is not a directory service and it cannot be assumed that the internet user is merely searching the address of the proprietor of the trademark, said Google. An internet user may be looking for information that may be relevant to the trademark, it said. Thus, use of trademarked terms as keywords promotes fair competition and is in the interest of the consumer, it added. If a competitor can be permitted to include the trademark of its competitor within its advertisement under the principles of comparative advertising or in a descriptive sense or in a nominative sense in the physical world, the same principles and the same defences ought to apply to the field of internet advertising as well, it said.

 

The case has its genesis in Google conducting an auction of keywords in real time. Advertisers bid in advance by specifying the keywords for triggering the display of their advertisement, and the maximum price they are willing to pay if a user clicked on the advertisement. Advertisers do not pay when their advertisement appears on the search engine page, but only when a user clicks on the advertisement to view the website, referred to as 'pay-per-click'. The Google Ads programme enables commercial entities, by means of reservation of one or more keywords, which could be any word, including, the brand names of its competitors, to obtain an advertising link to its site when an internet user enters one or more of the keywords into a search request. 

 

Hindware, which had sales in excess of INR 5 billion in the year 2011-12, had accused Google of infringing its trademark to display companies' websites. Google has adopted a modus operandi whereby the registered mark of the company was offered to its competitors for a price to be paid to Google, allowing them to make huge gains at the cost of infringement of the company's registered mark, Hindware said. Further, there was a categorical admission that Google, by using trademarks, had increased its revenue to at least $100 million, as shown in the e-mail of Google's project manager, it said.  End

 

US$1 = INR 95.39

 

Reported by Surya Tripathi

Edited by Avishek Dutta

 

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