Delhi High Court Issues Notice On Google's Appeal Against Order Holding It Liable For Trademark Infringement Through Keyword Advertising

The Delhi High Court on Friday issued notice on an appeal filed by Google against a single judge ruling which restrained it from using the trademark “HINDWARE” as advertising keywords, holding that it could not avoid responsibility for enabling infringement through its keyword advertising tools.

A division bench comprising Justice V Kameswar Rao and Justice Manmeet Pritam Singh Arora directed the parties to file their written submissions and listed the matter on July 24 for final disposal.

Senior Advocate Abhishek Manu Singhvi appearing for Google submitted at the outset that the matter “cries out” for notice and interim protection.

He said that the issue involved in the case is that when you use someone's trademark simply as a trigger for search, will that amount to per se infringement?

He said that admittedly, there is no finding of confusion in the single judge ruling. Singhvi added that two division bench decisions of the High Court have said that when you use someone's trade name as a trigger, and there is no confusion, there cannot be any per se infringement.

Pressing for interim protection, Singhvi said that it is not a case about consumer protection or unfair trade practice or where there is finding of any confusion.

On this, the Bench remarked: “On confusion, we say nothing. But it appears to be confusion there. We want to keep ourselves open minded. We will see that. We will set out for hearing. We will fix a date and hear it….“

The single judge, in the judgment pronounced on May 22, had directed Google LLC and Google India to jointly pay ₹30 lakh as nominal damages to Hindware Limited.

It was held that 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.

Hindware had filed two suits after discovering that competitors Grohe and Cera had purchased “HINDWARE” and related keyword combinations on Google's advertising platform, causing sponsored links for rival brands to appear when users searched for terms such as “Hindware Sanitaryware”, “Hindware Sanitary” and “Hindware Sanitary Ware India.” Grohe, Cera and Omkara Infoweb later settled with Hindware, leaving Google as the contesting defendant.

Rejecting Google's defence that it merely “reserved” keywords and that any trademark use was attributable solely to advertisers, the single judge had found that Google actively suggested trademarked terms through its Keyword Planner Tool, conducted keyword auctions, and earned revenue when users clicked sponsored links triggered by those keywords.

Title: Google v. Hindware Limited & Ors