Google moves Delhi HC Division Bench, challenges bar on keyword bidding

Co likely to content keyword bidding helps smaller players, gives level playing field for discoverability

Technology giant Google has moved the Division Bench of the Delhi High Court, challenging the single-judge bench ruling on keyword bidding on Google search results, sources told Business Standard. The plea is likely to be heard on Friday. 

In its plea, Alphabet-owned Google has contended that keyword bidding — which allows competitors to use third-party trademarks at the back end to display their search results prominently — helps improve competition by giving smaller companies a level playing field. 

“We are appealing the Delhi High Court’s order, which diverges from established legal precedents in India. Our ads policies reflect standard practices that enable competition and give consumers more choices. We look forward to presenting our position to the court,” a spokesperson for the company said. 

 

Sources said the tech giant is also likely to tell the Division Bench of the HC that there are previous rulings by both the Delhi HC and the Supreme Court, as well as by the Competition Commission of India (CCI), that have allowed this practice. The company is also expected to apprise the court that keyword bidding is a well-accepted norm globally. 

In May this year, a single-judge bench of Justice Mini Pushkarna held Google liable for allowing sanitaryware rivals of Hindware to bid on and use the trademark ‘Hindware’ as keywords under its Google Ads (formerly Google AdWords) programme. 

In a 163-page ruling, Justice Pushkarna said Google’s conduct allowing other competitors to use ‘Hindware’ as a keyword amounted to trademark infringement under Section 29(8) of the Trade Marks Act. 

Unlike other cases where the company names were generic and, therefore, keyword bidding could be allowed, Hindware was a name coined by the company, the single-judge bench reasoned. Therefore, the move constituted an infringement under the Trade Marks Act. 

Google’s plea challenging the May 22 judgment is also likely to contest this finding and contend that the Trade Marks Act does not make any such distinction between whether a word has been coined by a company or used generally in the English language, a source close to the development said. 

Justice Pushkarna’s ruling contrasts with the Delhi HC’s 2023 decision in the MakeMyTrip versus Booking.com case. 

In that case, MakeMyTrip had sought to restrain Booking.com and Google from using its registered trademarks as keywords through the Google Ads programme. 

While a single-judge Bench had allowed the plea, a division Bench declined interim relief, observing that Booking.com was itself a well-known travel platform and that internet users were unlikely to be misled into believing that Booking.com's services originated from MakeMyTrip. 

“It is important to note that a search for MakeMyTrip India’s (MIPL’s) name or its trademarks using Google’s search engine would show MIPL’s web address in organic search results,” the division Bench had observed. 

“Prima facie, we are unable to accept that MIPL can claim any such right on the basis of its rights under the Trade Marks Act,” the court had said. The Supreme Court (SC) subsequently affirmed that order in March 2024 without examining the merits of the dispute.