Invisible keywords, visible consequences: The Hindware-Google row

The Delhi High Court's ruling against Google in the Hindware trademark dispute could alter how keyword advertising, trademark rights and platform liability are viewed in India

A quick Google search for a brand often displays more than just the company’s website. Alongside the organic results, users are shown sponsored links — sometimes from competitors — placed through keyword advertising.

 

For years, that practice has existed in harmony with the digital advertising economy. Until now. Last week, the Delhi High Court (HC) delivered a ruling that could alter the legal contours of online advertising in India.

 

In a 163-page judgment, 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, enabling their advertisements to appear when consumers searched for Hindware products online.

 

 

The court ultimately held that Google’s conduct amounted to infringement under Section 29(8) of the Trade Marks Act. The provision outlines when the advertising of a registered trademark constitutes infringement in India. It protects brands against deceptive advertising practices that misuse a mark to damage its reputation or dilute its distinctiveness.

 

The ruling marks a contrast 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 services offered by Booking.com 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.

 

The apparent divergence between the two rulings has already sparked debate among trademark lawyers. Sudarshan Singh Shekhawat, advocate and founder of Shekhawat Law, said the two decisions were rendered in very different circumstances.

 

While the MakeMyTrip ruling was a prima facie determination at the interim stage, the Hindware verdict followed a full-fledged trial based on extensive evidence, including testimony from Google’s senior executives.

 

He also pointed out that the Hindware court undertook a detailed examination of Sections 29(6) — which defines what constitutes “use” of a registered trademark — and 29(8) of the Trade Marks Act, provisions that did not receive the same level of scrutiny in the MakeMyTrip litigation.

 

According to Shekhawat, the court concluded that unauthorised use of a trademark “in advertising” could amount to infringement even if the trademark itself never appears in the advertisement. “Any hidden unauthorised use of someone’s trademark in the process of advertising and earning profit while diverting customers would amount to infringement,” he said.

 

Simrean Bajwa, intellectual property lawyer and associate research partnership lead at BITS Law School, said the decisions can still be distinguished on their facts.

 

According to her, the Hindware court focused heavily on the exploitation of Hindware’s goodwill, consumer diversion, and Google’s role in the advertising process, whereas the MakeMyTrip ruling emphasised that the mere purchase of a trademark as a keyword does not automatically result in infringement. “The distinction lies less in the technology used and more in how the facts were evaluated against trademark law principles,” Bajwa said.

 

While it may be premature to conclude that Hindware revives the single-judge approach that was later overturned in MakeMyTrip, she said the judgment has undoubtedly reopened legal arguments that many believed had been narrowed by the division Bench ruling.

 

The ruling could also have consequences beyond trademark litigation, according to experts. For Ankit Sahni, partner at Ajay Sahni & Associates, the significance of the judgment lies in the court’s willingness to look beyond the technical invisibility of keywords and examine the commercial reality of the transaction. “If a platform is not merely hosting third-party content, but is actively selling, suggesting, and monetising another party’s registered trademark as an advertising trigger, its claim to complete intermediary neutrality becomes difficult to sustain,” Sahni said.

 

The judgment, he added, effectively signals that “neutrality cannot be a shield where the platform is commercially participating in the exploitation of brand equity”. Sahni believes the ruling could have far-reaching implications for digital platforms.

 

If the reasoning is followed in future cases, Google and other advertising intermediaries may have to introduce stronger trademark compliance mechanisms, including systems to block or review bidding on registered trademarks, faster complaint-resolution processes, advertiser declarations, and greater transparency regarding who is bidding on protected brand terms. The verdict also highlights a potential tension between trademark law and competition law.

 

The Competition Commission of India has previously viewed keyword bidding as potentially pro-competitive because it broadens consumer choice by allowing users to discover rival offerings alongside established brands. Trademark law, however, asks a different question. “There is an important distinction between the competition law lens and the trademark law lens,” Sahni said.

 

“The CCI asks whether keyword advertising expands consumer choice, whereas Hindware asks whether that choice can be created by leveraging the commercial value of someone else’s trademark,” he said.

 

Yukti Gupta, managing partner at Thistle & Law, said the judgment reflects a broader shift in how courts may view platform accountability in the digital economy.

 

Unlike earlier cases that focused primarily on consumer confusion, the Hindware ruling places greater emphasis on Google’s active commercial involvement in suggesting, auctioning and monetising trademarked keywords. “The judgment suggests that where a platform derives commercial benefit from the exploitation of trademark value, it may also have to bear a corresponding degree of legal responsibility,” Gupta said.

 

She added that the decision could reshape how courts assess safe-harbour protection under Section 79 of the Information Technology Act, particularly where platforms are found to be active participants rather than passive intermediaries.

 

Gupta also believes the divergence between Hindware and MakeMyTrip may ultimately require clarification from the SC. “At its core, the debate is about where the law should strike the balance between protecting brand investment and preserving competitive freedom in digital markets,” she said.

 

For businesses, particularly young brands spending heavily on digital advertising, the ruling serves as a reminder that brand equity itself is a valuable commercial asset.

 

Gupta observed that startups often invest substantial resources in building consumer trust and recognition, and that the judgment may encourage businesses to treat trademark protection as a core growth strategy rather than merely a compliance exercise. “The strongest digital moat is not borrowed visibility, but an independently recognisable brand,” she said.