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Google Ad Programme and Trademark Infringement

The case at hand involves a legal dispute between Agarwal Packers And Movers and Google with regard to the use of trademarks as keywords in the Google Ads Programme.

The Plaintiff alleges that Google's practice of allowing the use of its trademark as keywords in the Ads Programme infringes upon its trademarks and diverts internet traffic to competitors, leading to confusion among potential customers. This article aims to analyze the legal aspects of this case, focusing on whether such use constitutes trademark infringement under the Trade Marks Act, 1999.

Background and Allegations:
The Plaintiff claims that its trademark/trade name 'Agarwal Packers And Movers' has acquired goodwill and reputation due to continuous use, advertising campaigns, marketing efforts, and quality control.

The Plaintiff alleges that Google encourages third parties to use its registered trademarks as keywords, leading to the display of sponsored links for websites that infringe its trademarks.

The Plaintiff contended that such use of its trademarks diverts potential customers and causes confusion, ultimately infringing upon its trademarks.

Legal Analysis:
The central issue before the court is whether the use of trademarks as keywords in the Google Ads Programme constitutes trademark infringement under Section 29 of the Trade Marks Act, 1999.

The court's analysis revolves around the following key points:
Use of Trademarks as Keywords:
The court acknowledges that Google's Ads Programme allows advertisers to display sponsored links based on users' search queries. The use of trademarks as keywords is a way to identify relevant internet users. However, the court emphasizes that not all use of marks, even similar ones, constitutes infringement.

Deceptiveness and Confusion:
The Plaintiff's contention is that the use of its trademark as keywords leads to confusion among internet users, causing them to believe that they are accessing the Plaintiff's services. The court acknowledges this concern but notes that the use of trademarks as keywords is not inherently deceitful.

Detriment to Character or Repute:
The court establishes that the use of a trademark as a keyword, without blurring or tarnishing the trademark's distinctiveness, is not necessarily detrimental. However, if the displayed ads harm the character or reputation of the trademark, an action for infringement may be warranted.

Goods and Services:
The court distinguishes between goods and services covered under the registered trademark and those offered by the advertiser. If the goods or services are similar, Section 29(4) of the Trade Marks Act might not apply. However, if dissimilar goods are involved and the trademark has a reputation, the court considers whether the use provides unfair advantage and damages the trademark's distinctive character.

Use of Trademarks and Infringement:
The court rejects the notion that the mere use of trademarks to display advertisements automatically constitutes trademark infringement. It emphasizes that context, such as the impact on the trademark's reputation and character, must be considered.

In this case, the Hon'ble Division Bench of the High Court of Delhi upheld that the use of trademarks as keywords in the Google Ads Programme does not per se amount to infringement.

The court's decision hinges on the absence of blurring or tarnishing of the trademark's distinctiveness, and it clarifies that the use of trademarks as keywords is in relation to the goods and services offered by the advertiser.

The court emphasizes that each case must be examined on its own merits to determine if trademark infringement has occurred. Therefore, while the Plaintiff's concerns regarding confusion and diversion of traffic are acknowledged, the court's analysis underscores the need for a nuanced understanding of trademark infringement in the digital advertising realm.

The Case Law Discussed:
Case Title: Google LLC Vs DRS Logistics Pvt. Ltd
Date of Judgement/Order:10.08 2023
Case No. First Appeal from Order No.77 of 2023
Neutral Citation: 2023:DHC:5615-DB
Name of Hon'ble Court: Allahabad High Court
Name of Hon'ble Judge: Vibhu Bakhru and Amit Mahajan, HJ

Information and discussion contained herein is being shared in the public Interest. The same should not be treated as substitute for expert advice as it is 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
Email: [email protected], Ph no: 9990389539

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