New Delhi (Agency): In a recent judgment, the Delhi High Court has stated that Google, using trademarks as keywords for its Ads Programme, could be considered as “use” under intellectual property laws. If this leads to infringement, Google can’t benefit from the “safe harbour” protection to avoid liability.
The case arose when Agarwal Packers and Movers Ltd claimed that Google’s use of its trademark (and related terms) as keywords diverted online traffic from their site to an advertiser’s website. Google challenged this allegation.
Justice Vibhu Bakhru, heading the bench, expressed that, at first glance, Google appeared as an “active participant” in employing the trademarks. He noted, “It’s challenging to think that the search engine, which effectively sells keywords for its unique software, does not use them.” Furthermore, the court remarked, “Google is not a mere online intermediary. It operates an advertising business under its full control.”
Google defended its position by asserting that as an intermediary, it should be entitled to “safe harbour” protection. This means if an ad violates trademark laws, the advertiser should be held responsible, not Google.
However, the court’s response was clear: “Google’s use of the trademarks as keywords does amount to use in advertising under the trade mark Act.” They also emphasized that if Google was found guilty of violating the trademark or indirectly responsible, it would not gain “safe harbour” protection under the Information Technology Act.
Importantly, the court recognized that Google’s Ads Programme was a commercial activity. Using a trademark as a keyword to showcase ads about goods or services does count as using the trademark for advertising. Yet, the court also mentioned, “It’s not unlawful for Google to use trademarks as keywords to show ads if no confusion arises about the displayed links or ads being affiliated with the trademark owner.”
The court highlighted that every situation is unique. For each case, one must examine if using a trademark as a keyword results in a breach of the trade mark Act.
Concluding their judgment, the court clarified that their current views were “prima facie”, meaning these are initial observations for this particular appeal.
This case underscores the intricate relationship between technology giants, like Google, and intellectual property laws. The outcome may significantly impact online advertising practices.
