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.