Google can't claim safe harbour if use of trademarks in Ads Programme violates trade mark: Delhi HC

economictimes.indiatimes.com:

Google cannot avail of protection under the safe harbour clause of the Information Technology Act, 2000, if it uses a trademark as a keyword in its advertisement program. It will also be held liable for trademark infringement in such cases, the court added. A division bench of Justices Vibhu Bakhru and Amit Mahajan was hearing a case related to alleged trademark infringement allegations levelled by DRS Logistics and Agarwal Packers and Movers Pvt Ltd, both constituents of the DRS Group, against Google LLC.

The bench held that the U.S. multinational's use of trademarks as keywords for its Ads program amounts to «use» of trademarks as per Indian law. «Undisputedly, the trademarks are monetized by Google by using the same as keywords for displaying the paid Ads on the SERP (search engine results page).

In one sense, Google effectively sells the use of the trademarks as keywords to advertisers. Prima facie, it encourages users for using search terms, including trademarks, as keywords for display of the Ads to the target audience,» the bench stated. «It is difficult to accept that Google is entitled to exemption under Section 79 of the IT Act from the liability of infringement of trademarks by its use of the trademarks as keywords in the Ads Programme,» it added.

The bench added that before 2004, Google did not allow use of trademarks and later changed that policy to boost revenues, adding a tool which actively searches for useful search terms including well-known trademarks as keywords. «We find no infirmity with conclusion (of single judge) and hold that Google's use of the trademarks as keywords does amount to use in advertising under the TM (trade mark) Act. We also find no infirmity with the conclusion of the learned