Can a competitor bid on your brand name as a Google Ads keyword — so their ad appears when customers search for you? The Delhi High Court made Google suspend an advertiser’s account for bidding on “MakeMyTrip.” Here’s how the law treats it, and why the search engine’s liability is greyer.
How keyword advertising works
Keyword advertising is digital advertising’s biggest earner — the bulk of Google’s ad revenue. Keywords are the words/phrases users search. Through Google Ads (and Bing Ads), advertisers bid to sponsor a keyword; when a user searches it, the highest bidder’s ad appears beside or above the organic results. It lets advertisers target an already-interested audience, and the search engine profits each time an ad is clicked.
Where the problem starts
Keywords can be generic (“red bag”) or trademarks (“Louis Vuitton”). The trouble comes when a competitor bids on your mark — securing visibility above your own results. HappyEasyGo could have bid on “trip,” “travel” or locations; instead it chose “MakeMyTrip” — a mark belonging exclusively to MakeMyTrip. That lets third parties unfairly profit off a mark’s reputation. A parallel question: does Google itself — selling trademarked terms and profiting — infringe? So proprietors often sue both the search engine and the bidding advertiser.
Section 29 of the Trade Marks Act
Section 29 makes it infringement to use, in the course of trade, a mark identical or deceptively similar to a registered mark for the relevant goods/services. To establish infringement, “use in the course of trade” must be shown for both the search engine and the advertiser.
The advertiser side is largely settled by injunctions: in MakeMyTrip (India) v. Happy Easy Go India [CS(COMM) 916/2018], the court directed search engines to suspend the infringing party’s ad account. Google’s own policy takes IP violations seriously and lets owners complain. The logic: third parties intend to redirect customers from the trademarked keyword’s real goods to their own, causing reasonable confusion between sponsored links and organic results — arguably violating Section 29(7).
The search engine’s greyer liability
The search engine’s liability is trickier. In Consim India Pvt Ltd v. Google India Pvt Ltd [2013 (54) PTC 578 (Mad)], Google was alleged to have committed contributory infringement, turning on “use” under Sections 2(2)(b) and (c). The court held Google did not infringe — but because the marks were descriptive and didn’t allow substitution, so Google’s practice was an honest practice.
Where it’s heading
The law on trademarks-as-keywords is grey, especially on search-engine liability. The Consim marks were too descriptive to pin liability, and to hold search engines liable in future, the interpretation of “use” of trademarks may need to be broadened. As digital keyword advertising keeps evolving, proprietors will need effective recourse to secure their rights.
The takeaways
- Bidding on a rival’s mark is actionable — courts have ordered ad accounts suspended (MakeMyTrip v. HappyEasyGo).
- Confusion between sponsored and organic results underpins the infringement argument (Section 29(7)).
- Search-engine liability is unsettled — Consim turned on descriptive marks and “honest practice.”
- “Use” may need broadening — to pin contributory liability on search engines as the practice evolves.
Frequently asked questions
Can a competitor use my trademark as a Google Ads keyword? Bidding on a competitor’s registered mark can be trademark infringement — the Delhi HC ordered an ad account suspended in MakeMyTrip v. HappyEasyGo.
Is the search engine liable for selling trademarked keywords? It’s a grey area — in Consim v. Google, Google wasn’t held liable, but because the marks were descriptive; broader “use” interpretation may be needed to establish liability.
Which provision applies to keyword advertising? Section 29 (including 29(7) and 29(8)) on infringement and advertising, requiring “use in the course of trade” by the advertiser (and, arguably, the search engine).
What can a brand owner do about keyword bidding on its mark? Complain through the search engine’s IP policy and seek an injunction/account suspension against the bidding advertiser, as MakeMyTrip did.
Legislation referred to
- The Trade Marks Act, 1999