NEW DELHI: The 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 the benefit of “safe harbour” from liability under the law, the Delhi High Court has said.
The HC 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 keywords on Ads Programme resulted in the diversion of traffic from the portal 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 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 Act,” the bench said.
