GOOGLE LLC v. MAKEMYTRIP (INDIA) PRIVATE LIMITED & ORS: Use of Competitors’ Trademark as Google Ads Keywords Not Infringement Without Confusion, Holds Delhi HC

Court	Delhi High Court
Citation	FAO(OS) (COMM) 147/2022 & 148/2022 2024 SCC OnLine SC 266
Case Title	Google LLC v. MakeMyTrip (India) Pvt. Ltd. & Ors
Date of Order	14 December 2023
Parties	Google LLC – Appellants. MakeMyTrip – Respondents.

INTRODUCTION

The use of registered trademarks as keywords in search engine advertising programs, particularly Google Ads, is the focus of the case, MakeMyTrip (India) claimed that rivals like Booking.com were using its trademarks, including ‘MakeMyTrip’ and ‘MMT’, as Google Ads keywords, causing ads for those rivals to show up next to or above MakeMyTrip’s own search results. 

MakeMyTrip claimed that this was purely unfair on their part and led to competition and dilution of revenue leading to a clear cut trademark infringement, and in the absence of confusion or misrepresentation the court was asked to determine whether bidding on competitor’s registered marks as keywords violates Indian trademark law, and the legal question revolved around whether the search engine and advertisers obligation with regards to competitor’s marks as well as the boundaries of trademark protection in cases of online advertising. 

IMPORTANT PROVISIONS

• Section 2(2)(b), Trade Marks Act, 1999: this provision defines ‘use’ of a trademark in the court of trade, relevant for determining whether using a registered trademark as a keyword constitutes ‘use’ under the act. 
• Section 29, Trade Marks Act, 1999: outlines various forms of trademark infringement, covering unauthorized use that causes confusion, encompasses similar or dissimilar goods/services, and addresses misuse in advertising, packaging, and business contexts, also discusses ‘use’ and protects against unfair advantage.  
• Section 29(1), Trade Marks Act, 1999: Prohibits the unauthorized use of a registered trademark in a way that is likely to cause confusion. 
• Section 29(6), Trade Marks Act, 1999: Expands on what constitutes ‘use’ of a trademark for the purpose of section 29, including use in advertising. 
• Section 30(1), Trademarks Act, 1999: Deals with the limits on the effect of a registered trademark, including fair use and honest practices. 
• Section 4, Indian Evidence Act, 1872: Deals with the context of presumption arising from statutory provisions. 

BRIEF FACTS – 

The disagreement stems from the unauthorized advertisement, where sponsored results and search engines are crucial in influencing consumers’ choices. The case pertains to India’s top online travel agencies, MakeMyTrip (India) Pvt. Ltd. (MIPL), which filed a petition against Booking.com and Google LLC, Google (India) Pvt. Ltd. 

The main focus of ‘MIPL’s’ complaint was that rival Booking.com were using its registered trademarks more precisely “MMT’s” and associated marks as keywords in Google’s Ads program, through sponsored search results, the ‘MIPL’ claimed that this use redirected internet traffic meant for ‘MakeMyTrip’ to rival platforms, violating its intellectual property rights and undermining its built-up goodwill in the market leading to saturation in revenue. 

In addition to running the well-known search engine, Google also runs Google Ads, formerly known as AdWords, an advertising service and the travel agencies are among the advertisers who choose and bid on keywords through Google’s real-time bidding system. Google’s algorithm chooses which sponsored ads show up on the Search Engine Results Page (SERP) based on the user’s specific search terms, which in this case include the trademarks registered by MakeMyTrip. Interestingly, the ads are identified as “Ad” to set them apart from natural results.

MIPL itself is a significant used of Google Ads and bidding for keywords to promote its own website and services and it has been alleged that the competitors like Booking.com were also bidding on these same keywords particularly MIPL’s registered trademarks which resulted in Booking.com ads frequently appearing above or beside MakeyMyTrip’s own links and when a used searched for ‘MakeMyTrip’ or related terms, according to MIPL this activity was not only capitalizing on its brand reputation but also creating a likelihood of consumer manipulations and confusion amounting to trademark infringement, passing off and dilution of revenue shares. 

Furthermore the claim asserted that Google by permitting competitors to select ‘MakeMyTrip’ as a keyword had an active role in facilitating this alleged infringement and was unjustly enriching itself at MIPL’s expense through the advertising fees generated by such keyword bidding, hence MIPL sought a permanent injunction restraining Google and Booking.com from bidding for or using its registered marks as keywords under the Google Ads Programme, and sought similar restraints against Google itself from allowing such use and demanded damages and a restitution of accounts. 

In response to the same, Google and Booking.com contested these claims, arguing that the mere selection of a registered trademark as a keyword for online advertising does not constitute use ‘as a trademark’ under the Trade Marks Act, 1999, emphasizing that their advertisements did not constitute consumer confusion or deception. 

ISSUES INVOLVED – 

1. Whether the use of MakeMyTrip’s registered trademark as a keyword in Google Ads by competitors constitutes trademark infringement under the Trade Marks Act, 1999? 
2. Whether such bidding on the trademark as a keyword by a competitor causes confusion or deception among consumers? 
3. Whether Google, as the advertising platform allowing such keyword bidding, can be held liable for trademark infringement by enabling the use of registered marks as keywords? 
4. Whether using a trademark as a keyword in online advertising, without direct association or misrepresentation, amounts to unfair advantage or breach of honest trade practices under the  Trade Marks Act, 1999? 

ARGUMENTS ADVANCED BY APPELLANTS – 

• According to the counsels representing Google, choosing and using a registered trademark as a keyword in the Google ads program does not by itself constitute ‘use’ of the trademark in the sense of Trade Marks act, 1999, they thoroughly underlined that although keywords cause ads the user cannot see them in the actual ad, they further claimed that the behind the scenes use which does not include the trademark being displayed in the sponsored link or ad content cannot be compared to the trademark use in the course of trade, which is prohibited by sections 2(2)(b) and 29(6) of the Trade Marks Act, 1999. 
• The counsels for Google made extensive use of the precedent set in the case of Google LLC v. Drs Logistics (P), which held that use of trademarks as keywords in itself does not constitute trademark infringement unless it misleads consumers or results in association or confusion. 
• According to the counsels representing Google, the use in question is likely to lead to consumer confusion or deception regarding the origin or source of goods and services is the crucial test under section 29(1) of the Trade Marks Act, 1999, they further maintained that the platform does not display the trademark in the ad unless the advertiser requests it, and that its search engine makes a clear distinction between sponsored links and organic results using visual cues, and the appellant stressed that Booking.com the competitor and co-defendant is a well know platform in and of itself reducing the possibility that users would mistakenly associate its services with MakeMyTrip, they said that without concrete proof of misunderstanding or deception, the claims for infringement would fail. 
• Google challenged the Single Judge’s interpretation of Section 29(4), and they argued that this provision only applies when the allegedly infringing use relates to different goods or services. In this unique instance, both MakeMyTrip and Booking.com operate in the travel services sector, so their goods and services are similar. Citing precedents from the Supreme Court and Delhi High Court, Google pointed out that Section 29(4), which requires proof of reputation and unfair advantage or harm, does not apply to situations with similar goods or services.
• The counsels for appellant further submitted that keyword advertising is a standard and legitimate business practice to the world over and is integral to how digital marketplaces operate, and the use of trademarks as keywords enables users to compare competing services and recognize an aspect of fair pricing and competition, they further stressed that advertisers none other than MakeMyTrip itself, routinely bid of the competitor trademark and such bidding, devoid of evidence of confusion or passing off should not be perceived as contrary to “honest practice” under the ambit of section 29(8) of the Act, 1999. 
• With regards to the question of Google’s liability, the company highlighted its role as a neutral intermediary, it was stated by the appellant that Google offers a platform for advertisers to choose keywords and show their ads. Google further stated that it does not select keywords for advertisers or control their keyword choices, except for automated compliance measures. Thus, Google argued that it cannot be held responsible for actions that are solely the result of advertisers’ independent choices, such as when MakeMyTrip’s trademarks are used as keywords.
• Moreover, the appellant, refuting the presumption of confusion under section 29(3) of the Act, 1999, argued that any such presumption is rebuttable and does not require the granting of an injunction at the interim stage, especially in the face of substantial evidence to the contrary.
• Arguing that the material on record clearly demonstrated a lack of actual confusion and that distinguishing between advertisements and organic results was straightforward for the likes of users. 
• Google also responded to MakeMyTrip’s reliance on Section 29(7), arguing that selecting keywords is not the same as using a trademark on physical or virtual materials for labeling, packaging, or business documents. 
• Lastly, they highlighted that keywords function differently online than in legal terms, and they stated that no real “application” occurs during the keyword bidding process. 

ARGUMENTS ADVANCED BY RESPONDENTS – 

• The counsels for the respondents argued that the use of its registered trademarks, particularly “MakeMyTrip” and “MMT” by Booking.com and other competitors are keywords withing the Google Ads platform without its permission amounts to clear and actionable infringement under several provisions of the Trade Marks Act, 1999, and further relied on sections, 29(1), 29(2), and 29(6) of the Act, 1999, asserted that such use even if not visible to the consumer directly, qualified as ‘use in the discourse of trade’ and ‘use in advertising’, and this according to MakeMyTrip crosses the threshold under Indian trademark law, which does not require that confusion actually occur but that its likelihood alone suffices to constitute infringement. 
• The counsel for MakeMyTrip further asserted that the core mischief in keyword bidding lies in its ability to misguide user attention and even subconsciously by preventing advertisements for competitors like Booking.com, particularly when a consumer purposefully searched for “MakeMyTrip”, the counsels for the respondents added that even these ads are labeled as “Ad,” this label does not eliminate confusion for consumers, most users do not understand the technical details of keyword bidding.
• To substantiate, the respondents added that Section 29(3) of the Act, 1999, states that the use of an identical trademark for identical services gives rise to a presumed likelihood of confusion and hence, according to the respondents, no further evidence was necessary at the interim stage to establish their case of infringement or misrepresentation of the origin of services. 
• Under Section 29(4), they had argued that their registered marks had such a good reputation in India that even using them in a comparative and non-identical way could be actionable if it harms or takes advantage of the bran,d and likewise, under Section 29(8), they described the practice of competitors bidding for a trademark in advertising as unfair trade. 
• MakeMyTrip argued that using a registered trademark in digital advertising doesn’t have to be limited to traditional visible use, like showing the brand on labels or packaging, and according to Section 29(6)(d), the law clearly considers using a mark in advertising as a valid form of trademark use. Therefore, triggered ads that rely on trademark keywords, even if the term isn’t shown in the ad, should be included in this definition.
• Further emphasizing that the keyword targeting system used by the respondents plays a crucial role in determining ad placement and consumer traffic, thus amplifying the commercial impact of the violation, MIPL underlined that in the digital ag,e keywords are essential for businesses and unauthorized use of the trademark not only depletes traffics to the rightful owner’s site but artificially boosts competitors visibility at their expense. 
• The counsels for respondents argued that a significant part of MIPL’s argument focused on Google’s role as more than just a neutral platform, further stating that Google does not simply provide a passive infrastructure; it actively facilitates and profits from the bidding for branded keywords. 
• They pointed out that Google directly makes money from the use of registered trademarks by auctioning them to the highest bidder through its Ads platform, which encourages unauthorized use.
• With regards to the question on interim relief, MakeMyTrip argued that a strong prima facie case was made out owning to the direct use of their registered and reputed trademarks without authorization, the respondents also emphasized that such use causes irreparable harm to their to their brand distinctiveness and reputation harm which cannot adequately be remedied through damages alone, it was contended that unless the use of its marks as keywords was restrained the trademark rights granted under statute would become practically meaningless in the evolving digital advertising space. 
• MakeMyTrip described keyword bidding as a new type of exploitation that needs legal protection to secure ownership in online formats, and the respondents aimed to use fair principles to claim that continuing the infringing keyword advertising campaigns was both a legal violation and an unfair business practice that needed to be resolved through court intervention. 
• Finally, the respondents explained that their issue was not with comparative advertising itself, which is allowed by law, but with the subtle and indirect manner in which it was being executed. MakeMyTrip claimed that Booking.com did not clearly tell consumers that it was offering an alternative to MakeMyTrip, and instead, it used vague ad prompts that could confuse an average internet user. 
• They argued that these unclear promotional tactics do not meet the standards for honest and transparent comparative advertising, crossing both legal and ethical lines.

JUDGEMENT – 

• The Hon’ble High Court stated what constitutes “use” of a trademark under the Act, 1999, and it observed that section 2(2)(b), when read with the S. 29(6), broadens the meaning of “use” to include use in advertising even if the trademark is not visible to end users. 
• However, the court made a distinction between “use” as a keyword that consumers cannot see and use as a visible sign of origin, and it based its decision on its own judgment in Google LLC v. DRS Logistics (P.) Ltd, further stating the case determined that simply bidding on a trademark as a keyword, without the trademark appearing in the ad content or creating confusion, does not count as use “as a trademark” in trade.
• The court emphasized that the main point of infringement under Section 29(1) is the “likelihood of confusion.” It looked at how Google Ads work, pointing out that ads are clearly marked as “Ad” and are visually different from organic results, and MakeMyTrip did not present any evidence to show actual or possible consumer confusion caused by the ads or to prove that Booking.com’s ads gave the impression of being from MakeMyTrip.
• Emphasizing again that in modern digital marketplaces, consumers are growingly aware of how search advertising works and are unlikely to be misled merely due to a competitor’s ad appearing in response to a trademarked search term. 
• The bench clarified that Section 29(4) only applies when the allegedly infringing use is related to dissimilar goods or services, and that proof of reputation and unfair advantage or detriment is a higher standard. Section 29(4) was deemed inapplicable since MakeMyTrip and Booking.com offer comparable products and services (travel reservations). 
• The court further declared that cases involving competitors in the same field cannot be used to invoke protection under this provision.
• The court considered arguments under Sections 29(7) and 29(8) about “honest practices” and “unfair advantage.” It found that although these provisions aim to stop bad faith or misleading advertising, keyword bidding, without other factors of misrepresentation or reputation exploitation, does not itself constitute unfair advantage or dishonest behavior. The court made a clear distinction between legitimate competition and deceptive conduct, concluding that the facts in this case belonged to the first category.
• The Hon’ble court distinguished Google’s role as an intermediary providing a technical platform for keyword advertising, it further noted that Google does not select keywords or draft ads on behalf of the advertisers and thus, absent active involvement or knowledge of specific infringing acts cannot be held vicariously liable, the platform’s automated and neutral nature with compliance mechanisms and clear ad labelling was held to negate claims of direct or contributory infringement. 
• With regard to the relief by injunction, the court stated and examined whether a strong prima facie case and a likelihood of irreparable harm existed; it found that since there was no evidence of confusion or unfair advantage and in the light of prevailing judicial precedents, MakeMyTrip’s case did not meet the high threshold required for an interim injunction. 
• The Hon’ble court also considered the implications of enjoining standard online advertising practices for the broader market and noted that such an order could have widespread unintended effects on digital commerce and competition. 
• In conclusion, the court determined that the unauthorized use of registered trademarks as keywords in search engine advertising, in the absence of confusion, misrepresentation, or unfair commercial advantage, does not infringe trademark rights under the Act, 1999. 
• Further setting aside the impugned injunction reaffirms that trademark law must balance the interests of brand protection with those of fair and robust competition in evolving digital marketplaces. 

SUPREME COURTS TAKE ON THE SLP FILED BY MMT (INDIA) – 

• The Hon’ble Supreme Court, led by the bench comprising of D.Y. Chandrachud (ex-CJI), expressively declined to entertain the SLP filed by MakeMyTrip challenging the Delhi HC’s division bench order, the Hon’ble Supreme Court effectively upheld the High Court’s reasoning that the mere use of the “MakeMyTrip” trademark as a keyword by Booking.com and as through Google Ads, without evidence of consumer confusion or unfair advantage, does not constitute trademark infringement or passing off under the Indian law, hence stating that the judicial endorsement solidifies the position that keyword bidding in and of itself is not actionable unless it misleads or deceives consumers. 
• The Hon’ble Supreme Court concurred with the HC’s finding that the appearance of Bookin.com advertisements as sponsored links in response to searches for “MMT” did not, as a matter of fact or law, mislead the users into believing that the services or advertisements originated from “MMT”.
• The Hon’ble further emphasized that both “MMT” and Booking.com were established as recognizable brands, and internet users could actually distinguish between organic results and sponsored advertisements, such as the use of “MakeMyTrip” as a keyword by Booking.com, which was deemed insufficient to establish confusion, passing off, or unfair trade practice at the interim stage.
• The Supreme Court, in its brief order, clarified that it was not getting involved at this early stage, especially since the main case was still pending before the High Court. The Hon’ble bench noted that the complicated questions of whether using keywords counts as trademark use or if it amounts to passing off should be addressed with detailed evidence during the trial. 
• The Court left the door open for more thorough arguments to be considered later; however, at this point, it ruled that MakeMyTrip had not shown a clear right to stop the keyword bidding, hence MakeMyTrip’s applications and all pending interim claims on this issue were dismissed.

CONCLUSION – 

In conclusion, the legal case of MakeMyTrip (India) Private Limited v. Google LLC has clarified the relationship between trademark protection and online advertising practices in India, and both the Delhi High Court and the Supreme Court have acknowledged that using a registered trademark as a keyword in online ads does not automatically lead to infringement. 

This is true unless there is clear proof of consumer confusion, misrepresentation, or unfair use of a brand’s goodwill and this ruling highlights the courts’ awareness of changing digital marketing norms while balancing the rights of trademark owners with competition and consumer understanding in the digital era, lastly the decision not only clarifies the law on keyword advertising for now but also suggests that future cases will need strong evidence of actual confusion or dishonest behavior, marking an important point for trademark law in India’s growing digital market.

*This article has been written by Mayur Shrestha (Presidency University Bengaluru School of Law).