Introduction
The internet or the cyberspace has had a significant impact on our personal and social lifestyle. Businesses are also shifting to the digital realm in order to meet the market's ever-increasing demand. So, in order to divert web traffic to their businesses, companies nowadays use a variety of marketing and advertising strategies. One of such strategies involves the Search advertisement which has a distinct benefit of placing relevant ads in front of a target customer at the exact time the customer expresses his or her interest while surfing the internet. Hence, showcasing the most appropriate ads to the target customers at the right time is the main purpose of online advertisement. If you've ever used Google to look for useful information online, you're certainly not the only one to have searched for information in this manner. Most buyers explore the internet to look for highly relevant information, compare products/services, and read helpful reviews before approaching a business to indulge with them.
What is Keyword Advertising?
Keyword advertising, such as Google Ads and Meta-Tags, are few of the important virtual tools that majority of the organizations have been employing to extend their Internet presence and attract clients to their websites in this approach. Metatags has been defined by the court in the case of Mattel inc. & Ors. v/s Jayant Agarwalla & Ors.[1] in which it was said that ‘meta-tags are machine-readable codes used by search engines to index sites. These codes define the functionality of a website by a website owner and that the use of a trademark as meta-tags constitutes infringement and passing off.’[2]
How does the Google Ads Program work?
The Google Ads program allows anyone to bid on keywords that may contain their trademark. Competitors compete for each other's trademarks in order to improve the visibility of their goods and services on the search engine. As a result, a trademark owner must bid for its own property, or else its competitors will be able to use the registered trademark to advertise their own goods and services. As a result, the owner is compelled to invest in the Google Ads Program.[3]
The constant growth of search engine advertising in India appears to have led to an increase in trademark infringement cases based on alleged keyword misuse. Several trademark owners are seeking protection from their competitors' misusing their trademarks in an attempt to increase the appearance of their own advertisements on Google searches to promote their own services.
In the present predicament, the question is whether using third-party trademarks in Google advertisements or meta tags constitutes trademark infringement? This was deal with by the Court in the case of MakeMyTrip India Private Limited vs Booking.com B. V. & Ors.[4]
Brief Facts-
In the present case, both MakeMyTrip and Booking.com are online travel portals which are used for booking air tickets, hotels, holiday packages etc. The Plaintiff- MakeMyTrip (India) Pvt. Ltd. had filed a suit seeking permanent injunction in order to protect its registered trademark ‘MakeMyTrip’ and its variants against being used by the Defendant No.1- Booking.com B.V. as keywords on the Google Ads Program to promote the Defendant No.1’s services as advertisements when the search results are displayed on the Google search engine.
The case made by the Plaintiff is that often the first search result would be an advertisement of the Defendant No.1’s services upon entering the keyword ‘MakeMyTrip’. The Plaintiff contended that such use would amount to an infringement of their trademark which would result in a significant monetary loss given it is being done by one of their leading competitors.
Defendant No.1 argued while relying on the ‘Guess’[5] Judgement, that there cannot be any restrictions on usage of a trademark on the Google Ads Program, as a keyword, including by competitors. The other defendant presented a similar case that such usage would infact not constitute a trademark infringement.
Judgement-
The court held “that the use of the Plaintiff’s registered mark ‘MakeMyTrip’ on the Google Ads Program as a keyword would amount to trademark infringement.” It further reiterated that such a use would be “detrimental to the Plaintiff’s monetary interest as also to the brand equity of the Plaintiff’s mark. To allow competitors such as www.booking.com and even Google to encash upon the reputation of the Plaintiff’s mark for their own monetary advantage is not permissible in the opinion of the Court.”
While granting an injunction with the reasoning that if not granted it would cause an irreparable injury to the Plaintiff, the court further directed the Defendants to restrain from using the mark ‘MakeMyTrip’ for using it as a keyword on the Google Ads Program till the next date of hearing.
Conclusion-
Online advertising has been the most convenient approach for businesses to advertise and market their products and services in the last decade or so. The Internet's capability to locate, connect, and target customers is, of course, unparalleled.
This order has come in at such a time where in cases against the use of trademarks on the Google Ad Programs by competitors are on a significant rise. The jurisprudence that has been evolved by the Courts so far regarding usage of ‘keywords’ or ‘metatags’ by competitors and/or third parties like a search engine such as Google on its Advertising program, has set forth a precedent to be followed in order for settlement of disputes arising out of such a use and will ensure against promotion of goods and services through advertisements that can be misleading.
It can be inferred in light of the current as well similar judgements on this subject matter that the courts tend to reach the conclusion that they do keeping solely in mind the monetary along with a loss in reputation incurred by a business. To be able to understand the reasoning of the court in a more lucid manner, tangible data through consumer surveys could make the current precedent more robust for future disputes on the same lines.
Author Details- Name- Adya Khanna. 3rd year of law at Dr. Ram Manohar Lohiya National Law University, Lucknow in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
[1] Mattel inc & Ors v/s Jayant Agarwalla & Ors 2008 (153) DLT 548.
[2] Harsh Gehlot, ‘Are Keywords Considered for Trademark Infringement?’ (ZEST IP) https://zestip.com/are-keywords-considered-for-trademark-infringement/ accessed 17 September 2022.
[3] Sangita Sharma, ‘MakeMyTrip vs Booking.com – Looking at the Delhi High Court Injunction on Usage of AdWords’ (Spicy IP, 2 May 2022) https://spicyip.com/2022/05/makemytrip-vs-booking-com-looking-at-the-delhi-high-court-injunction-on-usage-of-adwords.html accessed on 17 September 2022.
[4] MakeMyTrip India Private Limited vs Booking.com BV & Ors CS (COMM) 268/2022.
[5] Case AT 40428 of 2018.