Google Must Remove Ads That Infringe Upon Trademarks: Delhi High Court
Google must investigate complaints of trademark infringement and remove infringing ads, Delhi High Court said.
In an adverse ruling for Google, the Delhi High Court has held that the tech major should actively remove ads that infringe upon trademarks.
Google LLC had appealed against a single judge order from 2021, arguing that it's entitled to protection as an intermediary under Section 79 of the Information Technology Act, 2002. This section provides intermediaries with immunity for content posted by third parties on their platforms, subject to certain conditions.
The division bench rejected Google's contention saying the tech giant suggests keywords to advertisers, including the trademark of competitors. It pointed to the platform's Keyword Planner Tool to say that it allows parties to have visibility on their competitors' trademarks. In turn, Google makes substantial financial benefits derived from keyword sales, the high court pointed out.
Accordingly, its claim of being a mere intermediary has no credibility, the court held.
Prima facie, Google encourages users for using search terms, including trademarks, as keywords for display of the ads to the target audience...It is difficult to accept that Google is entitled to exemption under the IT Act, 2002, the Delhi High Court said.
The case emanated from a complaint filed by DRS Logistics Pvt., which contended that if a person looks up its trademark "Agarwal Packers and Movers" on Google, websites of competitors pop up. The ad system of the search engine used its trademark to redirect online traffic to the infringing party's website. Accordingly, the company sought an injunction to prevent the use of its trademark as a keyword or meta tag, among other requests.
High Court Order
The division bench upheld the directions given by the single judge, asking Google to investigate the complaints of DRS and remove any such ads that are found to be infringing upon the trademark of the company.
The ruling will mean that search engines like Google will need to put in place a newer system and also, deal with day-to-day complaints placed by brand owners, Nirupam Lodha, partner at Khaitan & Co., told BQ Prime after the single judge ruled against the tech major.
Effectively, Google is being asked to be an adjudicator. "Agarwal Packers and Movers" are quite well known in India. But when it comes to a newer trademark that is sued for infringement, the court would generally look into questions such as: is it under the same category of goods and services, who used the mark first, etc., Lodha pointed out.
"Google will need to investigate and review the overall impact of an ad, that is, whether any part of an ad contains any material infringing the trademark," he said.