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Use Of Trademarks As Keywords In Online Advertising

In recent years, the intersection of intellectual property rights and the digital landscape has given rise to complex legal issues. One such issue is the use of trademarks as keywords in online advertising, particularly in programs like Google AdWords. This article delves into a legal analysis of a case where plaintiffs sought to restrain defendants from using trademarks as keywords in their advertising, specifically focusing on the case's outcome and its implications.

The plaintiffs in this case, holders of trademarks "Policy Bazaar," "PolicyBazaar," and "Policy Bazar," filed a lawsuit against the defendants, alleging that the defendants were using identical or deceptively similar trademarks as keywords in the Google AdWords Program. The primary contention of the plaintiffs was that such use constituted trademark infringement and passing off.

The Court's Decision:
The court's decision centered on whether the use of these trademarks as keywords could be considered a "use of a trademark" under Section 29(1) of the relevant trademark act. The court held that keywords in online advertising do not serve the primary function of identifying the source of goods or services. Consequently, Section 29(1) of the act, which pertains to trademark infringement, was deemed inapplicable in this context.

Understanding User Perspective:
The court also considered the perspective of an internet user. It emphasized that individuals using search engines are generally aware of how these engines function and the nature of the results they display. From this perspective, the court reasoned that using a trademark as a keyword alone does not necessarily result in confusion among users who understand the workings of search engines. In other words, the mere use of a trademark as a keyword does not automatically lead to consumer confusion.

Assessment of Damages:
While the plaintiffs argued that the use of their trademarks as keywords increased the cost of their advertisements and potentially led to additional hits on the defendant's website, the court did not find these factors sufficient to establish trademark infringement or passing off. In essence, the court held that these consequences, while potentially detrimental to the plaintiffs, did not amount to legal wrongdoing on the part of the defendants.

The Concluding Note:
The case discussed in this article sheds light on the intricate legal issues surrounding the use of trademarks as keywords in online advertising. It emphasizes the need to carefully consider the functionality and user perspective in such cases. While trademark holders may have legitimate concerns about their brand's online presence, the mere use of trademarks as keywords may not always constitute trademark infringement or passing off, as demonstrated by the court's decision.

Case Law Discussed:
Case Title: Policy Bazar Insurance Vs Civer fox Insurance
Date of Judgement:06/09/2023
Case No. C.S Comm 259 of 2023
Neutral Citation No: 2023:DHC:6407
Name of Court: Delhi High Court
Name of Hon'ble Judge: Navin Chawla, H.J.

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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