Supreme Court Dismisses MMT's Challenge Against Delhi HC Interim Order Allowing Booking.com To Use 'Make My Trip' As Google Adword

The Supreme Court on Thursday (March 7) refused to entertain MakeMyTrip's challenge against the Delhi High Court order which had lifted the interim restraining orders against Google and Booking.com from using the 'MakeMyTrip' (MMT)mark, with or without spaces, as a keyword on the Google Ads Program. The Court noted the lack of any premised confusion under S.29 of the Trade Mark Act 1999.The bench led by CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra observed that while Booking.com did use the keywords which involved the MMT's trademark at the ad-site bought from Google, that in itself was not sufficient to show passing off & infringement as the ad-site did not use MMT's keywords in its trademark form. Make My Trip had filed a suit against Google and Booking.com seeking to restrain them from adopting or using its registered word marks as keywords through the Google Ads Program or using them in any manner amounting to infringement of its trademarks. The single judge on April 27 last year granted an interim injunction in favour of Make My Trip, observing that the use of its registered mark by competitors even as metatags is an infringement under the Trademarks Act and that third-party bidding on trademarks as sponsored keywords for use by internet search engines can constitute misrepresentation.However, in December 2023, a Division Bench of Justice Vibhu Bakhru and Justice Amit Mahajan observed that Booking.com is a well-known and popular platform offering travel services and that prima facie, it cannot accept that an internet user is likely to be misled into believing that the services offered by it are those of Make My Trip. The interim relief was therefore set -aside.Arguments before the Supreme CourtSenior Advocate Mr Mukul Rohatgi appearing for MakeMyTrip (MMT) contended that there has been a passing off & infringement of the trademark of MMT, in terms of the keywords of the registered company name - 'Make My Trip'. He explained, that if one types 'Make My Trip' on Google, the first result would appear of the company 'Booking.com' and MMT's website would reflect far below. This, he reasoned was because of Google's bidding policy to appear in the top searches. “ If Booking.com wishes to use my goodwill, they pay much more to Google, so what Google does is, it gives them the primacy of place. Even though it is my prime competitor, when somebody wants my services and types my name, the first name that appears on the top will be booking.com” The CJI however observed that in the present search scenario, when the keywords Make My Trip are used, that would alone make a case of passing off and infringement. He underscored that merely being shown lower in order of search results would not constitute passing off.“ Booking.com nor Google are passing off their product as yours. Both appear on the screen.” Sr. Advocate Mr Pachnanda then weighed in to explain that there was no dispute that MMT's registered trademark 'Make My Trip' was sold by Google's ad-word program to its competitor having identical services, for the purpose being shown above MMT in the result page. The present matter involved a bidding/auction system conducted by Google Ads, where companies bid for higher visibility on search result screens. The winning bidder, determined by the number of clicks, pays a certain amount to Google. MakeMyTrip raised concerns about Booking.com using its trademark as a keyword, leading to a potential overlap in search results.The CJI posed a crucial question about the nature of the auction - whether it involved the right to claim a space or the auctioning of the actual trademark. The respondent clarified that it was the former, the right to claim a space on the result screen. Senior counsel Abhishek Manu Singhvi, representing Google, argued that MakeMyTrip did not appear on the ad site in its trade mark form, challenging the alleged premise of confusion as per Section 29 of the Trade Marks Act. “There is one fallacy - MMT (make my trip) doesn't appear anywhere on the screen... MMT doesn't appear anywhere on the ad site, it doesn't appear in the trademark form ...there is no premise of confusion as per S.29” S. 29 of the 1999 Act deals with the infringement of trademarks. It outlines various actions that may be considered as infringement and provides remedies for the protection of trademark owners As Per S.29(2), infringement may be caused by the “ Use of a similar trademark for identical or similar goods or services may also be considered infringement if it creates a likelihood of confusion.” The CJI directed a question to the usage by Booking.com, emphasizing the potential objection to using "make my trip" as a keyword. He highlighted the risk of trading on the name of another company within the bidding process.“ What you use is the keyword make my trip which overrides his trademark....the problem is if I go to a sponsored site, when I use make my trip as a keyword then his website goes downside ...how...

Supreme Court Dismisses MMT's Challenge Against Delhi HC Interim Order Allowing Booking.com To Use 'Make My Trip' As Google Adword

Anmol Kaur Bawa

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