SUMMARY
The HC rejected Google’s contention that it was entitled to safe harbor protections as an intermediary under Section 79 of the IT Act
Google’s claims of being a mere intermediary lack credibility as tech major derived substantial benefits from sale of keywords, noted the HC
Google had filed an appeal against a 2021 Delhi HC order that directed the tech giant to investigate whether the use of trademarks as ad keywords amounted to infringement
In a major blow to Google, the Delhi High Court (HC) on Friday (August 11) directed the tech major to actively crackdown on ads that infringe upon trademarks.
The order came as a division bench of the HC was hearing an appeal filed by Google against a 2021 Delhi HC order that directed the tech giant to investigate whether the use of trademarks as ad keywords amounted to infringement.
In its argument, Google contended that it was entitled to safe harbor protections as an intermediary under Section 79 of the Information Technology Act, 2002. The provision more or less offers immunity to platforms from content posted by third-parties.
While rejecting Google’s argument, the HC, as per Bloomberg-Quint, observed that the tech major’s claims of being a mere intermediary had ‘no credibility.’
While observing that Google derived ‘substantial’ benefits from sale of keywords, the Court noted that the tech major itself suggested keywords to advertisers, including the trademark of competitors. Citing Google’s Keyword Planner Tool, the HC said the tool even allowed firms to have visibility on their competitors’ trademarks.
The HC also held that, prima facie, it appeared that Google encouraged search keywords related to trademarks to target ads, adding that it was difficult to accept that Google was entitled to intermediary exemptions.
Eventually, the division bench upheld the single-judge ruling that directed Google to probe and remove any ads that are found to be infringing upon the trademark of an entity.
At the heart of the matter is the trademark infringement case filed by DRS Logistics. The company, in its plea, flagged the usage of its trademark ‘’Agarwal Movers and Packers’ as a keyword by competitors on Google search. This, the complainant said, allowed the websites of its competitors to be displayed on top when searching for the trademark.
Subsequently, DRS Logistics sought an injunction before the Delhi HC to prevent the usage of its trademark as a keyword, among other requests.
With the new order, the onus now lies with the tech major to actively flag and remove keywords that infringe upon a company’s trademark. The move could force the tech major to undertake certain reforms to its India operations and potentially screen every ad for trademark infringement.
It could add more compliance burden for the tech major as companies may line up to raise their respective complaints with Google’s ad platform.
This adds another headache for the tech major which has already been saddled with a slew of legal cases. It is already entangled in multiple antitrust cases and has been fighting a multi-font battle with Indian startups over the implementation of its contentious user choice billing system.
With this, Google finds itself cornered on yet another issue in one of its biggest digital markets in the world. With much at stake, it remains to be seen what new norms are instituted by the tech major and whether they are welcomed by the local ecosystem.
