The Delhi High Court has held Google liable for trademark infringement in a plea filed by sanitaryware major Hindware over the use of its registered mark HINDWARE as a keyword in Google’s AdWords advertising programme.
Justice Mini Pushkarna rejected Google’s defence that it is only an intermediary and hence entitled to safe‑harbour protection.“The present issues are decided in favour of the plaintiff (Hindware) and against the defendants (Google)”, the judge concluded.
The judgment of May 22 was passed in two commercial suits filed by Hindware (through its predecessor HSIL) in 2013–14 against Grohe India, Omkara Infoweb, Cera Sanitaryware and Google entities over keyword advertising.It was Hindware's claim that when users searched for HINDWARE on Google, it threw up rival brands.
Hindware alleged that its competitors Grohe and Cera, assisted by Omkara Infoweb, had purchased HINDWARE and combinations such as HINDWARE SANITARY as keywords on Google’s AdWords platform so that sponsored links to their websites appeared as the first result when users searched for the Hindware mark.
During trial, Grohe, Cera and Omkara settled with Hindware and decrees were passed against them, leaving Google India and Google LLC as the only contesting defendants.Hindware relied heavily on the strength of its brand and prior recognition of HINDWARE as a well‑known trademark by the Delhi High Court in earlier litigation. It traced its use of the mark to 1991.
The company argued that Google’s sale and suggestion of HINDWARE as a keyword to competitors, without its consent, amounted to use in advertising within Section 29(6) of the Trade Marks Act, even if the mark did not appear visibly in the advertisement text. It contended that Google was at the epicenter of infringement because it runs the keyword auction, suggests trademarks via its keyword planner, ranks ads and derives assured revenue whenever advertisers bid on trademarked terms.
Hindware argued that use of an identical mark for identical goods (sanitaryware) on a search triggered by HINDWARE necessarily caused confusion to an average consumer of ordinary prudence.
On the other hand, Google attacked the maintainability of the suits on the grounds of territorial jurisdiction, lack of board authorisation to sue, and non‑joinder of the advertisers apart from the merits of trademark liability.It argued that keywords operate as invisible backend triggers and are never perceived by the consumer; therefore, their use is not trademark. It argued that advertisers alone choose keywords and create AdText and Google merely provides an advertising space and does not affix or display HINDWARE in its own ads or business papers.
The tech-company also invoked Section 79 of the Information Technology Act, claiming the status of an intermediary whose liability is excluded for third‑party information so long as it performs a neutral, technical role and observes due diligence.
Justice Pushkarna rejected Google’s intermediary defence. She flagged Google’s active involvement in the AdWords ecosystem including operating keyword auctions, suggesting popular search terms through its keyword planner tool, ranking ads using a quality score, and deriving advertising revenue from each click on sponsored links.
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