If a competitor buys your brand name as a search keyword, is that trademark use — or just how advertising works online? The Delhi High Court answered the first question in your favour, and then made clear that answering it isn’t enough to win.
The parties
The appellant, Google India (P) Ltd., is a non-exclusive reseller of the Google Ads Programme in India. The respondents, DRS Logistics (P) Ltd. and Agarwal Packers and Movers (P) Ltd., are leading packaging, moving and logistics service providers.
Google LLC v. DRS Logistics (P) Ltd., FAO(OS)(COMM) 2 of 2022, concerned whether displaying or encouraging the use of a registered trademark to surface third-party website links amounts to infringement — and whether Google enjoys intermediary protection under the Information Technology Act, 2000.
Issue 1: Is a keyword “use” of the mark?
Section 29(6) of the Trade Marks Act provides that a person uses a mark where they:
- affix it to goods or their packaging;
- offer goods for sale, put them on the market, stock them, or provide any service under another’s mark;
- import or export goods under the mark; or
- use another’s mark on business papers or in advertising.
The court observed that Google’s Ads Programme is a commercial means of monetising its search engine, with the resulting links displayed at the top of results and expressly labelled “sponsored”. Since the keywords were being used to display goods or services offered by a third party, this amounted to use within the provision.
Put plainly: keywords that are another person’s registered trademark, deployed to attract traffic and customers, are nothing other than advertising — and therefore capable of constituting infringement.
The important qualification
The court also held that using a trademark as a keyword without causing confusion as to origin, and without diluting the mark’s reputation, would NOT amount to infringement.
The test is confusion. If there is confusion — even briefly — it is infringement. If not, the use falls outside Section 29(6).
And that qualification decided this case. The respondents were unable to establish that any confusion had been caused among the public by third parties using their marks as keywords, and so did not obtain a ruling in their favour. Where a mark is used as a keyword as a word common to the trade, or by an honest and concurrent user, there is no infringement.
Use and confusion are both required. Establishing that keyword purchasing is legally “use” gets a claimant past the first hurdle only.
Issue 2: Can Google claim safe harbour?
No. The court held that Google runs the Ads Programme, and that it began permitting trademarks to be used as keywords after 2004 by amending its own policy, clearly with the intent of increasing its revenue.
An entity that is itself an active participant in the process cannot claim immunity under Section 79 of the Information Technology Act. Safe harbour protects a passive conduit, not a party whose own commercial design created the conduct complained of.
What it means in practice
For brand owners: keyword advertising by competitors is actionable in principle, but the case turns on evidence of confusion. That means gathering material showing consumers were actually misled — screenshots of the sponsored results in context, evidence of misdirected enquiries or complaints, and any survey or traffic data available. A claim resting on the bare fact that a competitor bid on your mark will not succeed.
For advertisers: bidding on a competitor’s mark is not automatically safe. The risk rises sharply where the ad copy itself uses the mark, or where the landing page invites the assumption of a connection. Bidding on a term that is genuinely common to the trade is a different matter.
For platforms: designing and monetising the programme forecloses the safe harbour argument.
The takeaways
- Keywords are “use” under Section 29(6) — they are advertising.
- Confusion remains essential — even brief confusion suffices, but some must be proved.
- No safe harbour for active participants — Google’s own policy change defeated Section 79.
- DRS Logistics still lost — for want of evidence of confusion.
Frequently asked questions
Is bidding on a competitor’s trademark as a keyword infringement in India? It amounts to “use” of the mark under Section 29(6), but infringement additionally requires confusion as to origin or dilution of the mark’s reputation.
Can Google claim intermediary immunity for its Ads Programme? No — the Delhi High Court held that Google actively runs and monetises the programme, so it cannot claim safe harbour under Section 79 of the IT Act.
Why did DRS Logistics not succeed? Because it could not establish that the public was confused by third parties using its marks as keywords.
Is using a competitor’s mark as a keyword ever permissible? Yes — where the term is common to the trade, or the use is by an honest and concurrent user, and no confusion or dilution results.
Useful official resources
- The Trade Marks Act, 1999
- The Information Technology Act, 2000
- Delhi High Court