Google can't claim safe harbour if uses trademarks as keywords in Ads: Delhi High Court [11.8.2023]

Use of trademarks as keywords by Google in its Ads Programme does amount to "use" under the intellectual property law and, in case of infringement, it cannot claim benefit of "safe harbour" from liability under the law, the Delhi High Court has said.

The court's observations came on an appeal by Google against the order of a single judge bench on a lawsuit by Agarwal Packers and Movers Ltd alleging 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.

"Google is not a passive intermediary but runs an advertisement business, of which it has pervasive control. Merely because the said business is run online and is dovetailed with its service as an intermediary, does not entitle Google to the benefit of Section 79(1) of the IT (Information Technology) Act, in so far as the Ads Programme is concerned," the bench, also comprising Justice Amit Mahajan, said in a recent order.

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.

"Google is not a passive intermediary but runs an advertisement business, of which it has pervasive control. Merely because the said business is run online and is dovetailed with its service as an intermediary, does not entitle Google to the benefit of Section 79(1) of the IT (Information Technology) Act, in so far as the Ads Programme is concerned," the bench, also comprising Justice Amit Mahajan, said in a recent order.


12 Aug 2023