Delhi HC: Google can’t claim ‘safe harbour’ if use of trademarks as ‘keywords’ for Ad programme violates trademark law
The Delhi high court states that Google can not claim safe harbour if ads violate trademark law.
In addition, the matter highlights the case related to alleged trademark infringement allegations levelled by DRS Logistics and Agarwal Packers and Movers Pvt Ltd, both constituents of the DRS Group, against Google LLC.
The matter is hear under a division bench of Justices Vibhu Bakhru and Amit Mahajan.
Trademarks as Keywords
The Delhi High court after allegations stated that use of trademarks as keywords by Google in its Ads Programme does amount to “use” under the intellectual property law. Further, the court said that in case of any infringement, it could not claim benefit of “safe harbour” from liability under the law.
Furthermore, the matter came into existence after an appeal by Google against the order of a single judge bench on a lawsuit by Agarwal Packers and Movers Ltd. Further, the lawsuit claimed that the use of its trademark and its variations as keywords on Ads Programme resulted in the diversion of traffic from the website of the plaintiff to that of the advertiser.
A bench headed by Justice Vibhu Bakhru said prima facie, Google is an “active participant” in use of the trademarks of proprietors and it was difficult to accept that the search engine would be exempted under Section 79 of the Information Technology (IT) Act from the liability of infringement of trademarks by its use of the trademarks as keywords in the Ads Programme.
Safe Harbour
Google argued that being an intermediary in relation to the Ads Programme, it was entitled to safe harbour and if an advertisement was violative of the trade marks Act, the advertiser should be held liable.
“We find no infirmity with conclusion (of single judge) and hold that Google’s use of the trademarks as keywords does amount to use in advertising under the trade mark Act. We also find no infirmity with the conclusion of the learned Single Judge that if it is found that Google has infringed plaintiff’s trademark or is contributorily liable for the same, the benefit of safe harbour under Section 79 of the IT Act would not be available to it,” the court said.
