Delhi High Court Issues Notice On Google's Appeal Against Order Restraining Use Of 'Hindware' As Ad Keyword

A Division Bench of Justice V Kameswar Rao and Justice Manmeet Pritam Singh Arora heard Google's plea while issuing notice, and directed that the appeal be treated as the lead matter in a batch of connected pleas.

The appeal arises out of a suit filed by Hindware, in which the single judge held that Google's practice of allowing advertisers to bid on "Hindware" as a backend keyword, without the mark ever appearing to the user or in the resulting advertisement, amounted to trademark infringement.

Google has challenged this finding as a question of law, arguing that keyword use without any finding of confusion cannot be treated as infringement per se.

Appearing for Google, Senior Advocate Abhishek Manu Singhvi told the Bench that the single judge's order conflicts with two earlier Division Bench rulings of the same court, which have been followed in roughly ten other matters.

"When you use somebody's trade name as a trigger, without at all using it otherwise, when there is no confusion, there cannot be a per se infringement," counsel submitted, adding that one of those Division Bench rulings had affirmed a single judge decision that the impugned order effectively overruled.

Counsel explained the mechanics of keyword advertising to the Bench, submitting that search engines depend on advertising revenue and that an advertiser's ad, once triggered by a keyword, is "separately identified as an advertisement" and does not itself use the rival's mark.

He argued that the only finding recorded against Google was "use as a trigger," and that the single judge had not returned any finding of confusion, unfair trade practice or restrictive trade practice.

A large part of the arguments turned on the Division Bench's earlier ruling in Google's dispute with DRS Logistics. Counsel submitted that the single judge had relied on that judgment for most propositions but departed from it on the question of balancing trademark rights against the working of the keyword advertising system.

On the ₹30 lakh damages awarded by the single judge, the Bench asked whether execution was being pursued independently of the appeal. Counsel for Hindware responded that the damages award could be executed regardless of the outcome on the keyword question, though the parties agreed to await the next date before pressing that issue further.

Counsel for Hindware, Mr Manohar Gupta, appeared for the respondent and agreed that written submissions, along with judgments the parties intend to rely on, be filed within one week.

The Bench listed the matter for further hearing on Friday, July 24, and directed that the present appeal be treated as the lead matter for the connected batch.