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The Delhi High Court (HC) has permanently restrained Google LLC and Google India from using the registered trademark “HINDWARE” as an advertising keyword, holding that the company’s keyword auction system constitutes trademark infringement under the Trade Marks Act, 1999, and that it cannot claim safe harbour under Section 79 of the Information Technology Act, 2000. Justice Mini Pushkarna delivered the judgment on May 22 and directed the company to pay nominal damages of Rs 30 lakh.
What happened: Hindware Limited filed two suits in 2013 and 2014 after rival companies Cera Sanitaryware and Grohe India purchased “HINDWARE” as a keyword on the AdWords programme, causing sponsored advertisements for competitors to appear when users searched for Hindware online. Cera, Grohe, and website developer Omkara Infoweb all settled with Hindware during the proceedings. Google remained the sole contesting defendant, choosing to legally defend its keyword monetisation architecture.
What the court held:
1. Invisible keywords count as trademark use. The company argued that keywords are backend triggers that are never visible to consumers and therefore cannot constitute “use” of a trademark. The court rejected this argument under Section 29(6)(d) of the Trade Marks Act, 1999, which covers use of a registered mark “in advertising” without the owner’s consent.
The court held that a mark need not visually appear in an ad for infringement to occur. The diversion of search traffic itself constitutes use in advertising. The court drew an analogy to meta-tags, hidden HTML tags used to divert search traffic in earlier cases, and applied the same logic.
2. The platform is not a passive actor. The court identified three specific ways the search giant actively participates in the process:
The court held that the company “seizes and sells” commercial value it has no lawful right to exploit and forces trademark owners to bid on their own brand names just to appear above competitors in results.
The court framed this as a property rights violation. It said trademarks are protected property under Article 300-A of the Constitution, and no law authorises a search engine to auction a registered trademark to a competitor without the owner’s consent.
3. The India policy is a deliberate deviation from the EU standard. The company’s own witness confirmed in cross-examination that until 2009, Google did not permit use of trademarked terms as keywords at all. It changed its global policy in 2009 to permit trademark keyword bidding but continued to investigate trademark complaints in the European Union and the European Economic Area while explicitly declining to do so in India.
The court found this to be a deliberate deviation based on the company’s own assessment that Indian users would not be confused by competitor keyword bidding, a position the court rejected.
4. Honest practices violation under Section 29(8). Section 29(8) of the Trade Marks Act covers advertising that takes unfair advantage of a mark contrary to honest practices in industrial or commercial matters, is detrimental to the mark’s distinctive character, or harms its reputation.
Critically, Section 29(8) does not require proving consumer confusion. It is a standalone ground for infringement. The court held that auctioning a registered trademark to that trademark’s competitors satisfies all three conditions under this provision.
5. Section 79 safe harbour does not apply. Section 79 of the IT Act shields platforms from liability for third-party content they host or transmit, provided they do not initiate or modify transmissions and exercise due diligence. The court rejected the company’s claim to this protection on two grounds:
The court also found that the India policy of declining to investigate or restrict the use of trademarked terms as keywords constituted a failure of due diligence, a separate basis for losing the Section 79 shield.
The court noted: “Google cannot be permitted to shrug off responsibility by making available a tool that leads to infringement, and then turning around to claim that the said tool was not mandatory.”
Google’s counterarguments:
Four defences were raised, all of which the court rejected:
On the last point, the court held that Hindware’s own use of the Ads programme did not authorise the company to auction Hindware’s registered trademark to its competitors.
What this means for Indian advertisers:
What the prior cases show: The case law on keyword advertising in India has not been consistent.
Why this matters:
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