Following the Delhi High Court’s (HC) May 22 judgment permanently restraining Google from using “HINDWARE” as an advertising keyword, a Google spokesperson issued the company’s first public statement on the ruling. MediaNama covered the judgment in detail here.
“We duly respect and operate in accordance with all local laws, and in instances where the orders are overbroad or inconsistent with our policies, we work to explain our position as per the legal process in the country,” the spokesperson told Storyboard18.
“Specifically on our Ads policy on trademark keywords, we have a clear and stated policy that does not allow competitor advertisers to use trademarked terms in the ad-text of an ad. This policy is consistently applied globally and is in accordance with the Indian trademark law,” the spokesperson added.
What Google said vs what the court found: Google’s statement contains three claims that sit in direct tension with the judgment’s findings.
1. On visible versus invisible use. Google’s statement addresses the use of trademarked terms “in the ad-text of an ad,” meaning text visible to the consumer. The court’s finding was specifically about invisible backend keyword triggers, trademarked terms used to trigger ads in Google’s auction system that never appear in the ad itself. The court held that invisible keyword use constitutes “use in advertising” under Section 29(6)(d) of the Trade Marks Act, 1999, because a mark need not visually appear in an advertisement for infringement to occur. Google’s statement addresses visible ad text. The court’s ruling addresses invisible keyword triggers. These are two different things.
2. On global consistency. Google’s statement says its policy “is consistently applied globally.” The court found otherwise. Google’s own witness confirmed during cross-examination that, until 2009, Google did not permit the use of trademarked terms as keywords. After changing its global policy in 2009, Google continued to investigate trademark complaints in the European Union (EU) and the European Economic Area (EEA), while explicitly declining to do so in India.
The court found this to be a deliberate deviation and a failure of due diligence, which served as a separate basis for stripping Google of its Section 79 safe harbour protection under the Information Technology Act, 2000. Google’s witness’s sworn testimony and the company’s public statement now appear to contradict each other on this point.
3. On prohibiting misleading use. Google’s statement says its policy prohibits misleading use of trademarked terms. The court found that Google’s Keyword Planner tool actively recommends rival trademarked terms to advertisers as keyword suggestions. The court held this constituted active facilitation of infringement, not its prohibition. A tool that recommends a competitor’s trademark as a bidding keyword and a policy that claims to prohibit misleading use of trademarks cannot both be accurately described the same system.
On next steps. The statement also said: “In instances where the orders are overbroad or inconsistent with our policies, we work to explain our position as per the legal process in the country.” Google did not confirm whether it intends to appeal the judgment.
Prior case law on keyword advertising remains inconsistent: Indian courts have not reached a consistent position on keyword advertising. In March 2024, the Supreme Court declined to interfere with a Delhi HC order that had allowed Google to use “MakeMyTrip” as a keyword in Google Ads, citing the absence of demonstrated consumer confusion, a finding that favoured Google, as Storyboard18 reported.
MediaNama covered the original Delhi HC order restraining Google and Booking.com from using the MakeMyTrip trademark as a keyword in 2022.
The Supreme Court’s subsequent refusal to uphold that restraint, combined with the Hindware single-judge ruling now going in the opposite direction, reflects an unsettled area of law that may ultimately need to be resolved by a Division Bench.
MediaNama has sent Google the following questions and will update this story when we receive a response:
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