The Delhi High Court has held Google liable for trademark infringement in a commercial dispute filed by sanitaryware manufacturer Hindware over the use of its registered trademark “HINDWARE” as a keyword in Google’s AdWords advertising programme.
The single-judge Bench of Justice Mini Pushkarna rejected Google’s defence that it functioned merely as an intermediary under the Information Technology Act, 2000, and was therefore entitled to safe harbour protection under Section 79 of the Act. The High Court passed the order on two commercial suits filed by Hindware through its predecessor HSIL against Grohe India, Cera Sanitaryware, Omkara Infoweb, Google India and Google LLC, concerning keyword advertising practices on Google’s search engine platform.
Hindware alleged that when internet users searched for the trademark “HINDWARE” on Google, sponsored advertisements and search results related to competing sanitaryware brands appeared prominently through Google’s AdWords programme. According to the plaintiff, competing entities had purchased the keywords HINDWARE, HINDWARE SANITARY and related combinations, so that advertisements for rival products could be displayed to users searching for the Hindware brand.
During the pendency of the proceedings, Grohe, Cera and Omkara Infoweb settled the dispute with Hindware, following which decrees were passed against them. Google India and Google LLC remained the only contesting defendants before the Court.
Hindware contended that it had been using the trademark HINDWARE since 1991, and the same had already been recognised as a well-known trademark by the High Court in earlier proceedings. The company argued that Google’s sale, recommendation and commercial use of the trademark as a keyword for competing advertisers amounted to use in advertising under Section 29(6) of the Trade Marks Act, 1999, even if the mark itself did not visibly appear in the advertisement text.
It was further argued that Google played an active role in the advertising ecosystem by conducting keyword auctions, suggesting trademark-based keywords through its keyword planner tool, ranking advertisements and generating revenue from advertiser bids and clicks linked to trademarked search terms. Hindware contended that such conduct enabled competitors to unfairly divert consumer traffic and created a likelihood of confusion among consumers searching for Hindware products.
Google challenged the maintainability of the suits on several grounds, including territorial jurisdiction, alleged absence of proper authorisation to institute proceedings and non-joinder of necessary parties. On merits, Google argued that keywords operated merely as invisible backend triggers and did not constitute trademark use because consumers never directly viewed the keywords themselves.
The company further contended that advertisers independently selected keywords and created advertisement content, while Google merely provided a neutral advertising platform. Relying upon Section 79 of the Information Technology Act, Google argued that it functioned as an intermediary hosting third-party content and could not be held liable for advertisements created by advertisers.
Rejecting the intermediary defence, the High Court held that Google’s role in operating and monetising the AdWords programme went beyond that of a passive intermediary. The Court noted that Google actively suggested keywords, conducted auctions for trademarked terms, ranked advertisements and earned revenue from the resulting traffic and clicks.
The Court held that such active commercial involvement disentitled Google from claiming immunity under Section 79 of the Information Technology Act. It further held that use of the trademark “HINDWARE” as a keyword constituted use in advertising within the meaning of Section 29(6) of the Trade Marks Act.
Accepting Hindware’s submissions, the single-judge Bench held that Google’s unauthorised sale and recommendation of the trademark to competing businesses amounted to unfair commercial exploitation of the mark and was contrary to honest trade practices.
Accordingly, the High Court restrained Google from using the marks HINDWARE, HINDWARE SANITARYWARE, HINDWARE SANITARY and HINDWARE SANITARYWARE INDIA, including any deceptively similar variations, as keywords in its advertising programme. It also directed Google to pay Hindware nominal damages of Rs 15 lakh in each of the two suits, amounting to a total of Rs 30 lakh, within eight weeks.
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