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Whether Use Of A Trademark As A Keyword On Google Ad Program Would Constitute Infringement? Delhi High Court To Consider

By Akshat Bhat      06 April, 2022 02:38 PM      0 Comments
Trademark Keyword Google Ad Program Constitute Infringement

The Delhi High Court will decide whether using a trademark as a keyword in the Google Ad programme constitutes trademark infringement.

While dealing with a claim brought by Upcurve Business Services Pvt. Ltd., a travel company, Justice Pratibha M Singh would be adjudicating the abovementioned question. The plaintiff company, www.udchalo.com, is a one-stop travel website that has won numerous honours.

The complaint claims that the mark 'UdChalo' was registered in Class 39, which covers offline and online travel arrangements, seat reservations, including aircraft reservations, air ticketing, tours and journeys, and so on.

The plaintiff was upset that Defendant No. 1, Easy Trip Planners Pvt. Ltd., and Defendant No. 2, www.happyfares.in, used the ad phrase 'UdChalo' on the Google Ads Program to attract internet users to their websites.

After hearing Defendant No. 1's testimony, the Court issued an order prohibiting it from using the plaintiff's mark as a keyword. Because Defendant No. 2 was unrepresented, the Court was inclined to issue an ad-interim injunction prohibiting it from using the plaintiff's mark 'udchalo' as a keyword to promote its own travel service.

As a result, the Court determined that Defendant No.2's use of the mark 'udchalo' constituted infringement.

As a result, the Court recognised that Defendant No.2 was in the competing industry of travel services, and that using 'udchalo' as a term to promote Defendant No.2's own business would constitute a trademark infringement.

"Accordingly, Defendant Nos. 3 & 4 are directed to block the keyword usage of the plaintiff's mark 'udchalo, by Defendant No. 2. Defendant No. 1 and 2 are also restrained from placing any further bids for keyword 'udchalo'till the next date of hearing," the Court directed.

The Court ordered that the matter be handled as a part-heard on the issue of whether the same would constitute infringement in law and if the use of a trade mark as a keyword would be a breach of law.

The matter will now be heard on April 8.

The Delhi High Court ruled in November that Google cannot acquit itself of the responsibility of ensuring that a keyword does not infringe on a trademark.

Allowing individuals who are not trademark owners to use a keyword that is a trademarked phrase or utilise elements of the trademark intermingled with generic words in the Ad-title or Ad-text may constitute trademark infringement or passing off, according to Justice V Kameswar Rao.

The Court had also opined that the use of trademarks as keywords amounts to "use" in the course of trade in terms of the Trademarks Act.

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