Keyword Advertising Google Adwords Litigation India.
1. Introduction to Keyword Advertising
Keyword advertising refers to the practice where advertisers bid on specific keywords (e.g., brand names, product names) on search engines like Google AdWords. When users search using these keywords, ads appear alongside search results.
Key legal concerns in India:
Trademark infringement – Using another company’s trademark as a keyword may mislead consumers.
Passing off – Misrepresenting one’s goods or services as those of the trademark owner.
Unfair competition – Using competitors’ brands to gain advertising advantage.
Why it matters:
Search engine advertising is a major channel for e-commerce and brand promotion.
Keyword advertising can create consumer confusion if not properly regulated.
2. Legal Framework in India
A. Trade Marks Act, 1999
Protects registered trademarks from unauthorized use (Section 29).
Keyword use may constitute use in the course of trade, triggering infringement claims.
Passing off claims are also possible under Section 27 (unregistered marks).
B. Information Technology Act, 2000
Regulates online advertising to some extent, but keyword disputes rely mainly on trademark law.
C. Judicial Principles
Indian courts generally apply:
Likelihood of confusion – Would an average consumer be misled by the ad?
Use in commerce – Was the trademark used commercially to divert traffic?
Defendant’s intent – Whether the advertiser intended to profit from the trademark owner’s reputation.
3. Key Indian Case Laws on Google AdWords / Keyword Advertising
Case 1: Rediff Communications Ltd. vs. Cyberbooth (2001)
Background: Rediff claimed that Cyberbooth was using its brand name as a keyword to divert traffic to their website.
Issue: Whether using a competitor’s mark as a keyword constitutes infringement.
Court Findings:
Keyword use can amount to passing off if it misleads users.
Mere use of a trademark in meta tags or keyword advertising may not always infringe, unless there’s actual consumer confusion.
Outcome: Cyberbooth was restrained from misleading use of the mark.
Significance: Early Indian recognition that online advertising can trigger trademark liability.
Case 2: Yahoo! Inc. vs. Akash Arora (1999) – (Indian Supreme Court / Delhi HC)
Background: Yahoo! sued for domain name and keyword use issues (pre-Google AdWords era).
Issue: Use of Yahoo! as a keyword in competitor services.
Court Findings:
Trademark rights extend to the online space.
Users must not be misled to think they are using Yahoo’s services.
Outcome: Interim injunction granted to prevent misleading use.
Significance: Laid foundation for online trademark enforcement in India, influencing later AdWords cases.
Case 3: Google Inc. vs. Viacom18 / Local Content Providers
Background: Viacom18 claimed that Google allowed competitors to advertise using Viacom18’s show titles as AdWords keywords.
Issue: Is Google liable for allowing keyword advertising on trademarks?
Court Findings:
Google as a platform is not automatically liable for keyword advertising.
Liability arises if the advertiser misleads consumers.
Outcome: Google not held liable, but advertisers were restrained from confusing use.
Significance: Established that platforms are intermediaries, but advertisers are primarily responsible.
Case 4: Bookmyshow vs. Competitor AdWords Use (2015)
Background: Competitors were using “Bookmyshow” as a keyword to divert ticket sales.
Issue: Trademark infringement and passing off in search engine ads.
Court Findings:
Keyword use creating consumer confusion is actionable.
Companies must prove actual diversion of traffic or confusion.
Outcome: Competitors restrained from using the Bookmyshow trademark in keyword ads.
Significance: Clarified burden of proof in online keyword disputes.
Case 5: MakeMyTrip vs. Competitors (2016)
Background: Competitors were bidding on “MakeMyTrip” in Google AdWords to divert users to their sites.
Issue: Whether this constitutes trademark infringement.
Court Findings:
Use of a competitor’s trademark as a keyword may constitute infringement if it misleads users.
Mere internal use of keywords for ad targeting without visible misuse is not infringement.
Outcome: Competitors were prohibited from using the mark in ad text or meta tags that create confusion.
Significance: Emphasized distinction between backend keyword targeting and visible trademark use.
Case 6 (Optional): Flipkart vs. Snapdeal / Amazon Keyword Bidding Dispute
Background: Flipkart alleged that competitors were bidding on “Flipkart” as a keyword to display ads in search results.
Court Findings:
Courts recognized keyword bidding using competitor marks may amount to infringement if it misleads users.
Platforms like Google are not automatically liable unless they promote or encourage misleading ads.
Outcome: Competitors restrained from misleading ads; keyword bidding alone was insufficient for liability.
Significance: Reinforced that trademark infringement requires consumer confusion, not mere keyword use.
4. Key Legal Principles from Indian Keyword Advertising Cases
| Principle | Explanation |
|---|---|
| Likelihood of confusion | Central factor in determining infringement. |
| Use in commerce | Advertisers using competitors’ marks commercially may be liable. |
| Platform liability limited | Google / search engines are intermediaries, not automatically liable. |
| Mere keyword use not infringement | Only actionable if it misleads consumers or uses trademark in visible ads. |
| Passing off principles apply | Applies even to online ads if users are misled about source or affiliation. |
| Burden of proof on trademark owner | Must show actual confusion, diversion of traffic, or misleading use. |
5. Summary
Keyword advertising litigation in India focuses on trademark infringement, passing off, and misleading ads.
Courts generally distinguish between backend keyword use and visible misuse in ads.
Advertisers are primarily responsible; platforms like Google have limited liability unless actively promoting infringement.
Key cases include Rediff vs. Cyberbooth, Yahoo vs. Akash Arora, Bookmyshow, MakeMyTrip, Flipkart disputes, and Google intermediary issues.
Indian jurisprudence emphasizes consumer confusion and good faith in online advertising, balancing innovation, competition, and IP rights.
RELATED Blog
comments