M/S Brilloca Ltd vs. Grohe India Pvt Ltd & Ors

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on: 26 February, 2026
nd
Pronounced on: 22 May, 2026
+ CS(COMM) 591/2017
HINDWARE LTD. .....Plaintiff
Through: Mr. Manav Gupta, Mr. Sahil Garg,
Mr. Abhinav Jain, Mr. Ankit Gupta,
Mr. Mithil Malhotra, Mr. Aryan
Pandey, Advocates
(M:9818022022)
versus

GROHE INDIA PVT LTD & ORS. .....Defendants
Through: Mr. Sandeep Sethi, Sr. Adv. with
Ms. Sriparna Dutta Choudhury, Ms.
Kopal Tewary, Mr. Naman Dutt,
Mr. Krisna Gambhir, Ms. Shreya
Sethi, Advocates for Google LLC
(M:8146455835)
Mr. Neel Mason, Mr. Vihan Dang,
Mr. Ujjwal Bhargava, Mr. Aditya
Mathur, Ms. Anuparna Chatterjee,
Advocates for D-2/Google India
Pvt. Ltd. (M:9399304251)

+ CS(COMM) 592/2017 & I.A. 17791/2014, I.A. 13863/2017, I.A.
12061/2018

HINDWARE LTD. .....Plaintiff
Through: Mr. Manav Gupta, Mr. Sahil Garg,
Mr. Abhinav Jain, Mr. Ankit Gupta,
Mr. Mithil Malhotra, Mr. Aryan
Pandey, Advocates
versus

Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 1 of 163

OMKARA INFOWEB PVT LTD & ORS. .....Defendants
Through: Mr. Sandeep Sethi, Sr. Adv. with
Ms. Sriparna Dutta Choudhury, Ms.
Kopal Tewary, Mr. Naman Dutt,
Mr. Krisna Gambhir, Ms. Shreya
Sethi, Advocates for Google LLC
(M:8146455835)
Mr. Neel Mason, Mr. Vihan Dang,
Mr. Ujjwal Bhargava, Mr. Aditya
Mathur, Ms. Anuparna Chatterjee,
Advocates for D-3/ Google India
Pvt. Ltd.
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGEMENT

MINI PUSHKARNA, J.
INDEX
S.
CONTENTS PARAGRAPH
NO.
NOS.
1. INTRODUCTION 1
I Parties 2 – 2.6
II Settlements 3 – 3.4
2. FACTUAL MATRIX 4 – 4.16
3. SUBMISSIONS OF THE PARTIES 5
I Plaintiff’s submissions 6 – 6.25
II Defendant’s submissions – Google 7 – 7.53
4. ANALYSIS AND FINDINGS OF COURT 8 – 235

A Proceedings before the Court 8.1 – 8.9
B Issue-wise findings 11 – 235
I Issue No. 1 in CS (COMM) 591/2017 11 – 28
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Issue No. 1 in CS (COMM) 592/2017
II Issue No. 2 in CS (COMM) 592/2017 29 – 36
III Issue No. 3 in CS (COMM) 591/2017 37 – 50
IV Issue No. 2 in CS (COMM) 591/2017
51 – 215
Issue No. 4 in CS (COMM) 591/2017
Issue No. 3 in CS (COMM) 592/2017
V Issue No. 5 in CS (COMM) 591/2017
216 – 228
Issue No. 4 in CS (COMM) 592/2017
5. Settlement between plaintiff and defendant no.
229 – 231
1 in CS (COMM) 592/2017
6. RELIEF 232 – 235

INTRODUCTION:

1. The present suits have been filed seeking a permanent injunction
against the defendants, restraining violation of the plaintiff’s rights in their
registered mark, ‘HINDWARE’, along with passing off, unfair
competition, dilution, rendition of accounts, etc.
Parties:
2. At the outset, it is pertinent to note the facts in relation to the
parties, and the substitution of the names thereof.
2.1 The plaintiff, i.e., Hindware Limited, is in the business of
sanitaryware products, which are being sold under the registered mark,
‘HINDWARE’.
2.2 The suits were initially filed by the plaintiff under their erstwhile
th
name, i.e., M/s HSIL Limited. However, pursuant to order dated 26 June,
2019, passed by the National Company Law Tribunal (“NCLT”), Kolkata
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Bench, sanction was granted to the scheme of arrangement between the
plaintiff and M/s Brilloca Limited, whereby, the assets, liabilities, rights
and claims of M/s HSIL Limited were transferred to/ vested in, M/s
Brilloca Limited. Thus, during the course of the proceedings, vide order
nd
dated 22 November, 2019, this Court had allowed the prayer for
substitution of M/s Brilloca Limited with the erstwhile plaintiff in both
suits, in view of the order of the NCLT.
2.3 Thereafter, the name of the erstwhile plaintiff, i.e., M/s Brilloca
Limited was changed to Hindware Limited, by virtue of the new
th
Certificate for Incorporation of the plaintiff company dated 13 April,
th
2022. Consequently, vide orders dated 18 July, 2022 in CS (COMM)
th
591/2017 and 29 July, 2022 in CS (COMM) 592/2017 , the name of the
plaintiff in the present suits has been amended as Hindware Limited.
2.4 In CS (COMM) 591/2017 , the defendant no. 1 – Grohe India Private
Limited (“hereinafter referred to as Grohe”), is also in the business of
sanitaryware and kitchen appliances products. The remaining defendants,
i.e., defendant nos. 2 and 3 – Google India Private Limited (“hereinafter
referred to as Google India”) and Google Inc., run the Google AdWords
Programme, which is a paid referencing and keyword advertising service,
on their search engine, www.google.com .
2.5 In CS (COMM) 592/2017 , the defendant no. 1 – Omkara Infoweb
Private Limited (“hereinafter referred to as Omkara Infoweb”) is a website
developer who has developed the website, i.e., www.cera-india.com for
defendant no. 2 – Cera Sanitaryware Limited (“hereinafter referred to as
Cera”). The defendant no. 2 is also in the business of sanitaryware and
kitchen appliances products. In this suit, Google India and Google Inc.
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were impleaded as defendant nos. 3 and 4.
2.6 In both the suits, the defendant – Google Inc., had filed applications
for change of name of Google Inc. to Google LLC, and the same was
th
recorded vide order dated 14 November, 2017 in CS (COMM) 591/2017
and CS (COMM) 592/2017 . In view thereof, the current contesting
defendants in both the suits are Google India and Google LLC.
Settlements:
3. During the course of the proceedings, certain developments arose in
relation to the parties, which are required to be underscored for the
purposes of adjudication of the present suits.
3.1 The defendant no. 1 – Grohe in CS (COMM) 591/2017 , entered into
th
a settlement with the plaintiff vide Settlement Agreement dated 24
th
November, 2015, and the same was recorded in the order dated 27
November, 2015, wherein, the suit was decreed against defendant no. 1,
and a direction was made to have the said Settlement Agreement and
application being I.A. 24410/2015 , filed under Order XXIII Rule 3 of the
Code of Civil Procedure, 1908 (“CPC”), to form part of the decree. The
th
order dated 27 November, 2015, is reproduced as under:
“xxx xxx xxx

The plaintiff has filed the present suit for permanent injunction
restraining violation and infringement of rights in the trademark
"HINDWARE", passing off, unfair competition, dilution, rendition of
accounts etc. against the three defendants. Defendant No.1 is Grohe
India Pvt Ltd. Defendant No.2 is Google India Pvt. Ltd and defendant
No.3 is Google Inc.

Defendant No.1 has settled the dispute with the plaintiff. The
abovementioned joint application under Order XXIII Rule 3 CPC
has been filed. The settlement agreement which is arrived between
th
plaintiff and defendant No.1 before Mediation Centre on 24
November, 2015 is not on record. Learned counsel for the plaintiff
undertakes to file the copy of settlement agreement within one week
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from today. The application is signed by both the parties i.e. plaintiff
and defendant No.1. It is also supported by the affidavit of both the
parties. Parties shall be bound by the terms and conditions of the
th
settlement dated 24 November, 2015. The suit of the plaintiff is
accordingly decreed against defendant No.1. Application under
th
Order XXIII Rule 3 CPC and settlement agreement dated 24
November, 2015 shall form part of the decree. Learned counsel for
defendant No.1 is agreeable that the written statement is taken off
from the record.

xxx xxx xxx”
(Emphasis Supplied)

3.2 In CS (COMM) 592/2017 , in similar circumstances, both the
defendant nos. 1 and 2, i.e., Omkara Infoweb and Cera, have entered into a
th
settlement with the plaintiff vide Settlement Agreements dated 08
rd
November, 2017 and 03 March, 2019, respectively.
3.3 This Court notes that decree has only been passed against defendant
th
no. 2 – Cera, and the same is recorded vide order dated 07 March, 2019
in CS (COMM) 592/2017 . However, with regard to defendant no. 1 –
Omkara Infoweb, the Court kept the Order XXIII Rule 3 CPC application,
i.e., I.A. 13863/2017 filed by plaintiff and defendant no. 1, to be decided at
the stage of final hearing, after defendant no. 1 has given its evidence as
th
plaintiff’s witness. The relevant portion of order dated 07 September,
2019, is reproduced as under:
“xxx xxx xxx

Today in Court, learned counsel for the plaintiff and learned senior
counsel for defendant no. 2-CERA have handed over a copy of the
rd
settlement agreement dated 3 March, 2019 executed between the
said parties as the original has been placed on record in CS (COMM)
103/2019. The same is taken on record. Learned counsel for the
plaintiff and defendant no. 2 pray that present settlement agreement
be treated as an application under Order 23 Rule 3 CPC. Ordered
accordingly.

xxx xxx xxx

Consequently, the suit is decreed qua defendant no. 2-CBRA in
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rd
accordance with the settlement agreement dated 3 March, 2019,
which is marked as Ex. C-1.

xxx xxx xxx

This Court is of the opinion that IA. 13863/2017 should be taken up
for hearing and disposal after the evidence of defendant no. 1 has
been recorded as a witness of the plaintiff.

xxx xxx xxx”
(Emphasis Supplied)

3.4 Thus, in view of the settlements entered between the parties, the
present suits are being pursued by the plaintiff against the contesting
defendants, i.e., Google India and Google LLC.
FACTUAL MATRIX:
4. The factual matrix in the present suits is as follows:
Plaintiff:
4.1 The plaintiff, through its predecessor, was established in the year
1960, and was first in the country to make available vitreous china
ceramics, offering significant improvement from the prevalent earthware
sanitary products. Further, from 1991 the plaintiff has been exclusively,
extensively and continuously been in the business of sanitaryware
including bathroom accessories.
4.2 The plaintiff, as on date of filing the suits, enjoyed 40% of the
market share in the organized sector of the Indian sanitaryware industry,
and has 18 service centres across India, apart from 25 HINDWARE
boutiques and more than 450 HINDWARE shops located in the country,
along with having more than 1235 institutional partners across India.
Further, the plaintiff exports its products across various countries in
Europe, Africa and Middle East.
4.3 The plaintiff has its registered mark, i.e., HINDWARE, since the
year 1991, and had total sales in excess of Rs. 500 Crores for the year
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2011-12. The sales figures of the plaintiff company under the mark,
HINDWARE since 2005-2006 to 2011-12, as per the plaint, are as
follows:

4.4 Further, the plaintiff has spent considerable amounts of money on
advertisement and promotion of its mark, ‘HINDWARE’ and related
marks, which are in excess of Rs. 50 Crores for the year 2011-12. The
expenditure for advertisement by the plaintiff company pertaining to the
mark, HINDWARE, from the year 2005-06 to 2011-12, as per the plaint,
is as follows:

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4.5 The plaintiff has been in continuous use of its registered mark,
HINDWARE and related marks, and has procured several trademark
registrations in that regard.
4.6 In early 2013, the plaintiff came to know that Omkara Infoweb and
Cera were advertising Cera’s mark, ‘CERA’ on Google’s platform, i.e.,
www.google.com , and availed the services of the AdWords Programme
run and managed by Google. Further, Omkara Infoweb and Cera
purchased the plaintiff’s registered trademark, ‘HINDWARE’ and/or a
combination of words thereof as keyword(s), in a manner that the first
result that appears when a consumer would search for ‘HINDWARE’, is
for the website of Cera, i.e., www.cera-india.com . A screenshot of the
same on the website of Google, is reproduced as under:

4.7 In October, 2014, the plaintiff came to know that Grohe was
advertising its mark ‘GROHE’ on Google’s platform, i.e.,
www.google.com and had availed the AdWords Programme run and
managed by Google. Further, Grohe had purchased the plaintiff’s
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registered trademark, ‘HINDWARE’ and/or a combination of words
thereof as keyword(s), in a manner that the first result that appears when a
consumer would search for ‘HINDWARE SANITARY’, or ‘HINDWARE
SANITARYWARE’ or ‘HINDWARE SANITARY WARE INDIA’, is for
the website of Grohe, i.e., www.grohe.com . Screenshots of the same on
the website of Google, is reproduced as under:


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Google/Contesting Defendants:
4.8 The contesting defendants, i.e., Google India and Google LLC
(“hereinafter jointly referred as Google”), in relation to the present suit are
in the business of online advertising, and run a programme known as
‘Google AdWords’, which is a form of keyword advertising that allows
advertisers to place advertisements along with search results in their
search engine, i.e., www.google.com . The AdWords service enables
commercial entities, by means of reservation of one or more words/
keywords, which could be any word, including, the brand names of its
competitors, to obtain an advertising link to its site when an internet user
enters one or more of the keywords into a search request.
4.9 As per the written statement of Google, it is a service provider for
various services such as internet search, email, social networking sites,
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bloggers etc., and most services offered by the Google are premised on
sharing of information and knowledge without the exercise of any
editorial control or monitoring by Google, in any manner whatsoever.
4.10 The AdWords Programme of Google has the following
components:
i. AdText : This refers to the title and text of the advertisement that
describes the product or service offered by the advertiser. The AdText is
visible to internet users.
ii. Uniform Resource Locator (“URL”) : The URL of the
advertisement provides the link to the website of the advertiser.
iii. Keywords : This refers to the words or phrases that trigger or
generate an advertisement when a user of the internet searches for that
particular word or phrase on sites such as Google Search.
4.11 Google has an AdWords Policy which covers the aspects of
administering third-party advertisements on its website. When an
advertiser signs up with the AdWords Programme, it enters into an
agreement with Google. The AdWords Policy, as applicable to India, does
not prohibit the use of trademarked terms as keywords to trigger
advertisements.
4.12 Google under the Adwords Programme also provides for an easy to
use process that can be availed by any owner of trademarks to report a
case of infringement of trademarks, which would enable the support team
of Google to review the complaint and to take appropriate action, as per
applicable laws and policies.
Grohe, Cera and Omkara Infoweb:
4.13 Grohe and Cera are both companies that are also engaged in similar
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businesses as that of plaintiff, i.e., sanitaryware products. Omkara Infoweb
is the company which maintained the website of Cera, i.e., www.cera-
india.com .
4.14 Both Grohe and Cera while using the Google AdWords Programme
had purchased AdWords rights on the website of Google for the plaintiff’s
mark, HINDWARE. Due to the same, when a person searched the word,
‘HINDWARE’ or related words on the website of Google, the ‘sponsored
links/website’ of Cera and Grohe would appear as the first search results.
4.15 Omkara Infoweb in relation to a campaign for advertising on
Google under the AdWords Programme, assisted Cera to enter into an
th
Agreement dated 06 February, 2013 with respect to the AdWords
service, with Google. During the campaign period, Google provided User
ID and Password for submitting and pasting a particular keyword so that
the rating of a particular brand or product starts getting displayed on the
first or the second page. This campaign as per the Service Agreement
th th
started on 18 February, 2013 and ended on 11 March, 2013, i.e., 21
days.
4.16 As noted, during the course of the present suits, Grohe, Cera and
Omkara Infoweb, have all entered into Settlement Agreements with the
plaintiff, and decree has been passed by this Court in relation thereof in
favour of the plaintiff and against the defendants, i.e., Cera and Grohe.
Further, in relation to Omkara Infoweb, the settlement and passing of
decree was kept pending on account of the said party appearing as a
witness for the plaintiff. Thus, the present suits and the prayers therein are
agitated by the plaintiff in relation to Google only.

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SUBMISSIONS OF THE PARTIES:
5. As noted above, the present matter is pending adjudication only
related to the prayers by the plaintiff against Google. Thus, the
submissions of the parties in the present suits are being recorded in
relation thereto.
Plaintiff’s submissions:
6. The submissions made by the plaintiff, in relation to the contesting
defendants, i.e., Google, are as follows:
6.1 The mark of the plaintiff, ‘HINDWARE’, was declared as a well-
st
known mark vide judgement and order dated 21 April, 2017 passed by
this Court in CS (OS) 2736/2014 , titled as ‘HSIL Limited Versus Kripton
Ceramics Pvt. Ltd. & Ors.’ . Therefore, there is a significant goodwill and
reputation of the plaintiff’s marks across different classes of products.
6.2 This Court has territorial jurisdiction to entertain the present suits as
the plaintiff has their office in Delhi and plaintiff is conducting business in
Delhi through its extensive network of dealers, showrooms etc., located in
Delhi. Further, cause of action has also arisen in Delhi as the website of
Google, can be accessed in Delhi, i.e., within the jurisdiction of this Court.
6.3 The contention of Google that its foreign entity, i.e., Google LLC,
has no role to play in the AdWords Programme is baseless on the ground
that its Indian subsidiary, i.e., Google India, is wholly owned by Google
LLC. Further, the argument of Google that they have no liability, as the
AdWords Agreement absolves them from the same, and the onus is on the
advertiser, has no merit as Google plays an active role and makes
substantial gains from the AdWords Agreement.
6.4 The use of trademark as keywords amounts to use of those marks
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for the purposes of Section 29 of the Trade Marks Act, 1999 (“Trade
Marks Act”). Sections 2(1)(zb) read with Section 2(2)(c)(i) of the Trade
Marks Act is couched in wide terms and any reference to use of a mark is
not just limited to the physical form, but also includes any other form.
6.5 The use of a trademark as a keyword for display of advertisements
in respect of goods/services clearly amounts to use of the trademark “in
advertising” within the meaning Section 29(6) of the Trade Marks Act. It
is not necessary that the trademark physically appears in the
advertisement, and the use to trigger display of advertisement itself
amounts to use of the trademark in advertising.
6.6 The contention of Google that the use of plaintiff’s trademark is for
the purpose of advertising or comparative advertising, and that there is no
likelihood of confusion is completely false and incorrect on the ground
that the internet is a major advertising platform. Therefore, the use of
trademark on the internet would also amount to use within the course of
trade.
6.7 Google offered/suggested the plaintiff’s registered mark as
keywords and the same has been acknowledged and admitted by Grohe,
Cera and Omkara Infoweb. The registered and well-known trademark of
the plaintiff is being used by Google by offering/suggesting the same to
the plaintiff’s competitors or any other entity for generation of
advertisements. The same is without any prior consent/approval from the
plaintiff company. Therefore, there is no permitted use by Google for the
registered mark of the plaintiff within the meaning of Section 2(1)(r) of
the Trade Marks Act. Thus, Google by selling the trademark of the
plaintiff as a keyword without any authorisation for commercial gains is
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infringing the plaintiff’s right to exclusive use of its trademark under
Section 28 of the Trade Marks Act.
6.8 There is blatant infringement and abuse of the plaintiff’s registered
trademark “HINDWARE” as Grohe and Cera are direct competitors of the
plaintiff, selling the same product range, i.e., sanitaryware through
identical trade channels to identical customers. Since there is use of a
mark identical to the registered trademark, i.e., HINDWARE, in relation
to identical goods, i.e., sanitaryware, the present case falls under the ambit
of Section 29(2)(c) of the Trade Marks Act read with Section 29(3) of the
Trade Marks Act. By virtue of Section 29(2)(c) read with Section 29(3) of
the Trade Marks Act, the Court is obligated to presume that the admitted
use of identical mark of the plaintiff as a keyword was likely to cause
confusion on the part of the public.
6.9 Even otherwise, the Settlement Agreement between the plaintiff and
Omkara Infoweb shows that the illegal and unauthorised use of the
plaintiff’s trademark resulted in confusion. The standard of confusion is to
be tested on the anvil of an average consumer of ordinary prudence and
not a legal expert. Thus, the use of plaintiff’s coined and well-known mark
by Goggle amounts to unauthorised use and infringement under Section
29 of the Trade Marks Act. Thus, PW-3 is an average consumer whose
testimony corroborates the confusion and satisfies the test of confusion
under the Trade Marks Act.
6.10 Google through its AdWords Programme is the only one who earns
guaranteed revenue, and if a consumer specifically searches the term,
‘Hindware Sanitaryware’, it is clear that he is specifically looking for the
products of the plaintiff. Therefore, the fact that the first search result of
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another company is shown to the consumer is bound to cause confusion
and show some relation with the plaintiff. Thus, such use of the mark
amounts to infringement under Section 29 of the Trade Marks Act, as well
as constitutes passing off.
6.11 In terms of the AdWords Policy of Google, as applicable in India,
Google itself did not allow a trademark to be used as a keyword till the
year 2009, and later changed its policy in 2015 to the effect that Google
would not investigate or restrict use of trademarked terms in keywords.
Further, the policy applicable in India is a deviation from the policy of
Google followed for countries in European Union (“EU”) and European
Free Trade Association (“EUFTA”), which provides a higher duty of care
in a jurisdiction where majority of the population comprises of “internet
literate” people, and such a policy ought to be followed in India as well.
6.12 Google’s witness in its cross-examination confirmed that the policy
was changed post the year 2009 as Google was confident that users in
India would not be confused by competitive keyword bidding. Thus, if it
is proven that due to the current policy of Google, a user is confused,
nothing more remains to be established for infringement at behest of
Google.
6.13 Further, Google conducts an auction of the keywords in real time
and advertisers bid for the keyword, including trademarked terms.
Google’s AdWords Programme is a commercial venture to monetise the
use of the search engine for advertising by displaying the sponsored links
of various advertisers, who seek to display their advertisements on the
Search Engine Results Page (“SERP”) pursuant to search queries initiated
by an internet user. Google actively encourages and suggests use of
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keyword and, by use of its software and algorithms, determines the
advertisements that will be displayed on the SERP. The advertiser that
bids the highest for the keyword is accorded priority for display of its
advertisements.
6.14 The act of Google to rank an advertisement on the basis of the
Quality Score, which depends on several factors, shows that Google
admittedly is aware of the fact that it is a competitor applying for a third-
party trademark and not the trademark owner itself. Despite this, Google
sells/ auctions registered trademarks to competitors of the proprietor
simply because it earns a commercial advantage from such conduct.
6.15 The AdWords Programme of Google is anti-competitive and illegal
as it encourages and gives impetus to infringement, by providing a
platform for the same. Further, Google cannot compel any person to
approach it with complaints and bid for their own trademark as if it runs a
parallel regulatory regime. The plaintiff, being the owner of the registered
trademark cannot approach Google for enforcement of its rights when
admittedly Google itself is a partner in the infringement of the plaintiff’s
trademark.
6.16 Thus, Google is taking unfair advantage of the plaintiff’s trade
mark, which is contrary to honest practices, by selling of the plaintiff’s
registered mark as a keyword in the AdWords Programme for the purpose
of advertising, and providing a platform for infringement. Such conduct
falls within the definition of infringement under Section 29(8) of the Trade
Marks Act.
6.17 Google in some form or the other commits infringement as it sells
keywords through its AdWords Programme and suggests or prompts the
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advertisers to purchase the trademark of a competitor using its Keyword
Suggestion Tool.
6.18 In the present case, no generic term is being sold as a keyword by
Google. Rather, Google has suggested and auctioned the coined registered
mark, HINDWARE to the plaintiff’s competitors. The suggestion made by
Google in its own AdWords Programme, based on its own policy as well
as user statistics, makes it more likely for an advertiser to take the
suggestion of Google in this regard. Therefore, Google has an onus to not
allow third parties to use trademarked terms.
6.19 The adoption of deceptively similar mark by Google erodes the
distinctiveness associated with the plaintiff’s registered mark, and
adversely affects the future market expansion plans of the plaintiff. Thus,
the same results into dilution of the plaintiff’s mark by blurring.
6.20 The decisions of the Division Bench in the case of Google LLC
1
Versus DRS Logistics (P) Limited and Others as well as Google LLC
2
Versus Makemytrip (India) Private Limited and Others , to contend that
use of trademarks as keywords does not amount to infringement under the
Trade Marks Act, is not applicable to the present case. The trademarks
forming the subject matter in the aforesaid cases were generic words/
conjugation of generic words, having a dictionary meaning. The Courts in
the said cases did not have any occasion to deal with a well-known mark,
being a coined word, such as the plaintiff’s trademark “HINDWARE”.
Likewise, the decision of this Court in the case of Policybazaar Insurance
Web Aggregator and Another Versus Coverfox Insurance Broking Pvt.

1
2023 SCC OnLine Del 4809
2
2023 SCC OnLine Del 7965
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3
Ltd. and Others , would be of no help to Google, as the said decision also
dealt with a trademark being a generic word. Furthermore, the Courts in
the aforementioned decision did not have the occasion to deal with
infringement of trademark under Section 29(2)(c) read with Section 29(3)
of the Trade Marks Act, nor did the Courts in the said decisions return any
finding on the independent and exclusive right of a registered trademark
proprietor to the use of the trademark sans the right to sue for
infringement under Section 28(1) of the Trade Marks Act.
6.21 The defence taken by Google that it is an intermediary and is
exempted from liability under Section 79 of the Information Technology
Act, 2000 (“IT Act”), is not available to Google, as the said exemption is
not available if the function of the intermediary is not limited to merely
providing access to the communication system over which information
made available by a third-party is transmitted or hosted. The exemption is
also not available to the intermediary if he selects the receiver of the
transmission, and where an intermediary has conspired, abetted, aided or
induced the commission of an unlawful act, without requisite due
diligence.
6.22 Google is an active participant in use of trademarks of proprietors as
keywords, and was selecting the recipients of the information for the
infringing links. Moreover, the trademarks are undisputedly monetized by
Google by using the same as keywords for displaying the paid
advertisements on their website. Thus, Google cannot seek the benefit of
exemption under Section 79 of the IT Act.
6.23 Google has adopted a modus operandi , whereby, the registered

3
2023 SCC OnLine Del 5523
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mark of the plaintiff was offered to the plaintiff’s competitors for a price
to be paid to Google, allowing them to make huge gains at the cost of
infringement of the plaintiff’s registered mark. Further, there is a
categorical admission that Google by using trademarks has increased its
revenue to at least US 100 million dollars, as shown in the E-mail of
Google’s Project Manager, Baris Glutekin.
6.24 The Settlement Agreements entered by the plaintiff with Grohe,
Cera and Omkara Infoweb, shows that the said defendants have admitted
that by choosing the plaintiff’s registered trademark as a keyword through
Google’s AdWords Policy, the registered trademark of the plaintiff was
blatantly infringed. Thus, Google is at the epicentre of infringement, and
liability for the same shall be fastened upon Google as well.
6.25 Google entered into Agreements with advertisers, i.e., Grohe and
Cera, and knowingly enabled and assisted them in infringing the registered
mark of the plaintiff. The fact that the said Agreements are entered by
Google LLC, which is located outside of India, does not absolve the
liability of Google which has its Indian subsidiary as well.
Defendants’ submissions – Google:
7. The submissions made on behalf of the contesting defendants, i.e.,
Google, are as follows:
7.1 This Court does not have the territorial jurisdiction to entertain the
present suits, as the plaintiff’s registered office is in Kolkata, and the
plaintiff has invoked the jurisdiction based on the address of its trading
division located in Delhi. The plaintiff has failed to fulfil the criteria for
instituting the instant suits as per Section 134 of the Trade Marks Act, and
no proof is adduced by the plaintiff to substantiate that any business is
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carried out from the trading division address, nor any particulars of the
employees or proof of occupation or ownership is provided in relation to
the purported trading division of the plaintiff.
7.2 The amended memo of parties filed by the plaintiff also only
mentions the address of plaintiff at Kolkata and does not mention the
th
Delhi address. Further, the screenshot dated 05 December, 2013 of the
website of the plaintiff also shows that the plaintiff does not have any
office in Delhi, and the testimony of DW-4 in this regard has been
unrebutted and therefore stands admitted.
7.3 The contention of the plaintiff that the jurisdiction of this Court can
be invoked as the website of Google can be accessed within the
jurisdiction of this Court is unsustainable, as mere accessibility of
allegedly infringing content available upon google search would not
enable the Court to exercise jurisdiction. Further, the plaintiff has failed to
prove that allegedly infringing content was targeted at or has actually been
accessed by any customers, caused any confusion to consumers or any
transaction was concluded in that regard. Moreover, plaintiff has failed to
prove any injury to its business, goodwill or reputation, within the
jurisdiction of this Court. Therefore, the plaintiff has been unable to prove
any cause of action arising in the jurisdiction of this Court.
7.4 None of the defendants reside or carry on business or personally
work for gain within the territorial jurisdiction of this Court to invoke the
jurisdiction of this Court under Section 20 of the CPC.
7.5 The plaintiff company is not entitled to reliefs sought, as PW-1 , Mr.
A.K. Mohanty, has no authorization to institute the suit on behalf of the
plaintiff company. Further, PW-1 had no authority from the board of the
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plaintiff company at the time of instituting the suits, which has been
admitted in his cross-examination as well. Further, the board resolution
th
dated 18 April, 2016 authorizing PW-1 , does not ratify the past acts.
7.6 The suit is not maintainable owing to lack of cause of action as the
suit was originally instituted against the advertiser, and the cause of action
was restricted to Omkara Infoweb and Cera. The allegation against Google
was only in relation to assisting or aiding the said advertisement, which as
on date does not exist, and no fresh cause of action is pleaded against
Google, therefore, the prayers with respect to paragraphs 34 (a) and (b) of
the plaint are liable to be rejected for lack of cause of action against
Google.
7.7 The present suit is bad in law for non-joinder of necessary parties,
as Omkara Infoweb and Cera who are alleged to be actually advertising on
Google Ads Programme, are absent on account of settlement with the
plaintiff. Further, on account of the same Google cannot be sought to be
restrained in rem .
7.8 The plaintiff has suppressed material facts that they have a Google
AdWords account and have themselves bid for third party trademarks as
keywords. Thus, the plaintiff cannot approbate and reprobate at the same
time by continuing to avail of the benefits of the AdWords Programme,
accepting to abide by Google’s terms and conditions, including, the
trademark policies, and at the same time claiming that the use of a
trademark as a keyword amount to purported infringement of trademark
rights.
7.9 Google had served notices to plaintiff for admitting the facts in
relation to the said third party trademarks, however, no response has been
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provided to the same, therefore, the said notices shall be deemed to be
admitted. Further, Cera had filed a suit against the plaintiff, wherein, the
plaintiff gave the undertaking that they shall not use the marks of Cera.
Thus, the plaintiff is contradicting its own stand in the present suit and in
the earlier suit proceedings.
7.10 The plaintiff, being a user of the Google Ads Programme has
complete knowledge of the terms of service and availability of the
grievance redressal mechanism in relation to trademarked words, yet no
complaint or intimation was filed by the plaintiff with regard to use of the
mark ‘HINDWARE’ in the AdText by Cera and Omkara Infoweb in CS
(COMM) 592/2017 . Further, the advertising campaign in relation to the
impugned advertisement had already been stopped even before filing of
the suit. Therefore, the said suit is misconceived and unwarranted.
7.11 The trademark policy of Google in India does not restrict the use or
bidding of trademarks as keywords to display an advertisement. Only
where the advertiser has included a third-party’s registered trademark in
its AdText, Google restricts the said Ad, upon intimation by a complaint.
7.12 The Evidence Affidavit of PW-1 is not in compliance with Order
XIX Rule 6(b) of the CPC, and is a mere reproduction of the plaint,
therefore, the same is liable to be struck off. Further, the said Affidavit has
not been verified appropriately under Order XIX Rule 3 of CPC.
7.13 The advertiser has to first create an account on Google Ads,
specifically agreeing to Google Ads Terms of Service, Privacy Policies,
Google Ads Policies, Google Ads Trademark Policy, all of which are
binding in nature. Further, if a user clicks on an advertisement, he is taken
to the landing page of the advertiser’s website which is a “third-party
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website” neither hosted nor owned or controlled by Google. Moreover,
Google has no knowledge as regards the content of any such third-party
website and is not responsible for the same.
7.14 In relation to keywords, complete discretion to provide the keyword
vests with the advertiser, who alone decides what words or combination of
words to provide as keywords. Further, an advertiser can provide multiple
keywords for triggering its advertisements at its sole discretion if in its
opinion, such keywords are relevant to its website, and Google merely
provides the advertising space wherein the keyword used to trigger such
an advertisement, is typed/created by the advertiser and him alone.
Moreover, the keyword is treated by Google Ads as a mere backend
trigger for an advertisement to be displayed and is never used in a
trademark sense, and the keywords provided by the advertiser are not
visible anywhere within the advertisement.
7.15 Google’s Keyword Planner Tool merely displays a chart or an index
of search terms that are popularly searched for by users on the internet,
i.e., statistical information about the search trends for the category of
business/product of the advertiser, and an advertiser has complete
discretion and is solely responsible for providing the keywords for its
advertisement.
7.16 The keywords are never ‘sold’ by Google, but merely ‘reserved’ for
the purpose of triggering the search-based Ads, and the displaying of Ads
does not solely depend upon the keyword uses, but also on the Quality
Score of an advertiser’s website, which is a function of multiple factors.
Thus, Google Ads system is designed to ensure that irrelevant Ads do not
appear as the same could degrade user experience on Google’s website.
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7.17 Google does not earn any revenue from mere display of an
advertisement on the SERP under the Google Ads Programme, and the
same depends upon the Cost-Per-Click on the advertiser’s website.
7.18 Keywords are different from Meta-Tags, and in any case, Meta-
Tags are neither used by Google in the organic search result nor are part of
the sponsored links/Ads section.
7.19 No case of infringement or passing off is made out by the plaintiff
against Google as a keyword is only used at the backend for displaying
sponsored search results. It is the advertiser who creates the advertisement
and its content/AdText. Therefore, none of the provisions of Section 29 of
the Trade Marks Act are satisfied. Further, the PW-1 deposed that he has
no knowledge regarding the Google Ads Programme, and therefore, his
testimony in his cross examination does not corroborate his Evidence
Affidavit.
7.20 For the purposes of satisfying infringement, each sub-section of
Section 29 of the Trade Marks Act requires that the use of the infringing
mark has to be used as a trademark. Further, the use in the present case is
imperceptible to the consumer and cannot be held to be use as a
trademark, as such a use cannot convey to the consumer about the origin
or source of the goods and services. Therefore, since the use of
trademarked terms as keywords on Google Ads cannot be perceived by the
consumers in any manner, it does not meet the test of infringement under
Section 29(1) of the Trade Marks Act.
7.21 The use of the trademark as per Section 2(2)(b) and (c) of the Trade
Marks Act requires printed or visual form of representation of trademark,
and therefore, the mark must be seen/visible/perceivable/discoverable by
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the consumer. Therefore, mere use of trademarks as keywords as a
backend trigger does not amount to use of the trademark and does not
satisfy the ingredients of Section 29 of the Trade Marks Act.
7.22 Section 29(6) lists out instances when a person is said to ‘use’ a
registered mark, however, Google has not affixed “HINDWARE” to any
goods or its packaging nor has Google offered/exposed/stocked or
imported any goods under the mark “HINDWARE” for sale. Google has
not offered or supplied Ad services under the trademark “HINDWARE”.
Google has not used “HINDWARE” on Google’s business papers or in
Google’s advertising. The meaning of “uses….in advertising” ought to be
construed as a visible usage of the trademark “HINDWARE” by Google
i.e., within the AdText which is visible to the consumers. Keywords used
as a backend trigger for displaying ads cannot be construed as ‘used in
advertising’ for the purposes of trademark infringement. Further, mere
display of “HINDWARE” in an auto-generated list of popular search
terms in the Keyword Planner Tool does not amount to ‘ use’ or ‘ use as a
trademark’ by Google.
7.23 Google is neither providing services identical or similar to the
plaintiff, nor the use of trademark as keyword amounts to likelihood of
confusion. Thus, Section 29(2) of the Trade Marks Act is not applicable to
Google in the present case. Section 29(2) rests on proving the likelihood
of confusion, however, the plaintiff has failed to prove any confusion or
likelihood thereof on the part of the internet users solely on account of use
of third-party trademarks as keywords in the Google Ads Programme.
7.24 Where the advertisement itself is clear as to its source, there is no
likelihood of confusion on the part of the public. In any event, even this
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analysis can only be performed with respect to the advertiser’s conduct
and not Google, since Google is not providing services identical or similar
to that of the plaintiff, making Section 29(2) of the Trade Marks Act non-
applicable to Google.
7.25 Section 29(2) is a confusion-based provision, and the confusion
must be attributable to the advertisement and not to the keyword, which is
imperceptible to the consumer. Section 29(3) is not a standalone
infringement provision and does not create any liability for infringement,
but merely provides a presumption in case of Section 29(2)(c). Therefore,
Section 29(3) is an aid to Section 29(2), and the plaintiff cannot read
Section 29(3) in isolation or divorced from the scheme of Section 29 as a
whole. The rules of presumption are deduced from enlightened human
knowledge and experience and are drawn from the connection, relation
and coincidence of facts, and circumstances, therefore, even the question
of presumption under Section 29(3) of the Trade Marks Act does not come
to aid of the plaintiff, on account of there being no confusion or likelihood
of confusion as per Section 29 of the Trade Marks Act.
7.26 Section 29(4) of the Trade Marks Act which applies to dissimilar
goods or services, cannot apply as the plaintiff, Grohe and Cera are all
engaged in a similar business, i.e., sanitaryware. Further, as plaintiff has
relied upon Section 29(2) of the Trade Marks Act which is for similar
goods and services, thus, the plaintiff cannot simultaneously apply two
mutually exclusive provisions to make out its case. Even otherwise, where
the advertisement is shown to provide alternatives to the consumer, the
same cannot be regarded as being unfair advantage without due cause. The
inclusion of trademarks as keywords in the Google Ads Programme, does
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not per se amount to taking an unfair advantage of the trademark without
cause, and cannot be construed as being detrimental to the distinctive
character or repute of the trademark.
7.27 An internet user may be looking for an array of information,
products or services that may be relevant to the trademark or covered
under a trademark, including its reviews or information regarding
competitors who deal in similar goods or services, and there is nothing
illegal in seeking out such internet users as targets for advertisements that
may be relevant. Further, reliance has been placed on analogies with
respect to the brick-and-mortar world, where there would be no question
of infringement if customers looking for a product were also offered
products of rival competitors or if an entity would put its advertising
billboard next to a competitor’s exclusive store or when a competitor
would buy a shelf next to a competing brand.
7.28 Section 29(5) of the Trade Marks Act does not apply to the present
case as the mark “HINDWARE” is not used by Google as its trade name
or as part of its trade name or business concern and in any case no
allegations are made to this effect by the plaintiff as well.
7.29 Section 29(6), Section 29(7) and Section 29(8) of the Trade Marks
Act are also not attracted in the present case, as the word “advertising”
under Section 29(6)(d) of the Trade Marks Act has to be read as a noun (as
opposed to a verb), and therefore has to mean that the trademark must
appear in the advertisement/AdText.
7.30 Section 29(7) of the Trade Marks Act requires the mark to be
applied to a material that is intended to be used for labelling or packaging
goods, as a business paper, or for advertising goods or services. However,
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in the present case, there is no “material that is being intended to be used
for advertising goods or services” , and therefore the said provision is
inapplicable to the present case.
7.31 Section 29(7) of the Trade Marks Act is not a standalone provision
of infringement, and has to be read in conjunction with other provisions
within Section 29 of the Trade Marks Act. If this subsection is read as a
standalone provision, then it would effectively lead to an anomalous
situation wherein any application of a mark to a material intended to be
used for advertising would constitute infringement sans any requirement
of marks being confusingly similar or used in relation to similar goods or
services.
7.32 Section 29(8) of the Trade Marks Act deals with comparative
advertising and is wholly inapplicable to the facts of the present case. In
any case, the said provision states that a registered trademark is infringed
by “any advertising of that mark” . Therefore, the advertisement has to be
of that very trademark and not any other mark. Keyword is provided as a
backend trigger and therefore does not amount to advertising of the said
mark.
7.33 Section 29(8) of the Trade Marks Act requires that an advertisement
must take unfair advantage of the registered mark, however, in the present
case, there are other similarly placed entities which offer online search
advertising which follow similar policies as Google that permit the use of
trademark terms as keywords as a signal to display an ad or a relevant
product to end users. Thus, the practice of Google is legitimate advertising
practice.
7.34 The search engine is not a directory service and it cannot be
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assumed that the internet user is merely searching the address of the
proprietor of the trademark. An internet user may be looking for
information that may be relevant to the trademark. Thus, use of
trademarked terms as keywords promotes fair competition and is in the
interest of the consumer.
7.35 Even though use of trademarks as keywords may have added to the
cost of advertisement for the plaintiff, however, the same does not amount
to infringement of registered trademarks. Merely because a trademark
proprietor has to bid on its own trademark for using it as a keyword is not
a sufficient basis for concluding that the trademark’s advertising function
is adversely affected. The policy of Google Ads to allow the use of
trademarked terms as keywords has been held to be pro-competition by
the Competition Commission of India (“CCI”) as it provides similar
consumer benefits and choice as compared to traditional advertising.
7.36 Section 29(9) of the Trade Marks Act brings within its ambit
spoken use of a mark. However, use of trademarked terms as keywords is
not perceivable by the user, as it can neither be seen, heard, or, understood
by the user. Therefore, it does not come within the ambit of Section 29(9)
of the Trade Marks Act.
7.37 Confusion or likelihood of confusion is a sine qua non for
trademark infringement and passing off. Any alleged violations under the
Trade Marks Act have to be looked at from the lens of consumer
confusion or deception. The Courts in various jurisdictions have
acknowledged that for determining confusion or likelihood of confusion,
the relevant or proper comparison ought to be between the resulting
advertisements and the trademarked term so alleged to be infringed. The
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clear labelling of advertisements or the sponsored search result eliminates
the likelihood of confusion among the users. Thus, per se use of trademark
as a keyword does not amount to confusion as keywords cannot be
perceived by consumers. Further, no proof has been produced by the
plaintiff that there was an actual confusion or likelihood of confusion,
therefore, no case for infringement is made out.
7.38 The use of the trademark as a keyword coupled with the display of a
sponsored link must have real likelihood of confusion. Mere generation of
interest in the sponsored link without any likelihood of confusion cannot
be construed as infringement of a trademark. Doctrine of Initial Interest
Confusion is inapplicable to the present facts and circumstance, and the
said doctrine must not be conflated with initial interest as mere diversion,
without any hint of confusion, is not actionable.
7.39 In the present case, absolutely no proof has been produced by the
plaintiff to prove that there was an actual confusion, or a likelihood of
confusion caused by the mere availability of the mark “HINDWARE” as a
keyword on Google for displaying relevant websites. No evidence has
been produced by the plaintiff to show even diversion of internet traffic on
account of use of the trademarks as keywords. Even otherwise, mere
diversion of users is not actionable per se , without any confusion of
likelihood of confusion on part of the consumers.
7.40 The evidence of PW-3 is directly in conflict with the written
statement, and further, the allegations and facts stated in PW-3 ’s evidence
affidavit are not corroborated and in fact stand disproved. PW-3 is not a
legal expert, and the statement at best constitutes his personal opinion,
which cannot be treated as evidence of law or as binding upon other co-
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defendants.
7.41 In CS(COMM.) 591/2017 , plaintiff’s trademark was not visible in
the Ad-text of the impugned advertisement, thereby, ruling out the
possibility of any confusion. On the other hand, in CS(COMM.) 592/2017 ,
the plaintiff alleges that its trademark “HINDWARE” was visible in the
Ad-text of the advertisement of Cera. This is in violation of Google’s
trademark policy. However, admittedly, no complaint was received by
Google regarding such purported use, and the advertisements have already
been removed.
7.42 There is no case of passing off also, as in the absence of perceivable
use of a mark, there is no representation as to the origin or source made to
the consumers. In any case, Google is not liable for passing off as even the
plaintiff has not made any case against Google for the same.
7.43 The claim of the plaintiff regarding infringement of their derivative
marks and variants is not valid as all such marks of the plaintiff are
generic in nature, and the plaintiff cannot claim proprietary rights, thereto.
7.44 The contention of the plaintiff in relation to Section 28 of the Trade
Marks Act is not applicable as exclusive right in a trademark, can operate
at best as defence to an alleged infringement action, and cannot give rise
to cause of action without establishing infringement under Section 29 of
the Trade Marks Act. Section 28 of the Trade Marks Act does not
dispense with the requirement of establishing infringement under Section
29 of the Trade Marks Act, which alone enumerates and governs the
grounds for infringement.
7.45 Even if it is assumed that there is use by Google of the plaintiff’s
mark, regardless, there is no ‘infringing use’, as the use would be fair,
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nominative, descriptive, honest and non-confusing in nature and is
statutorily exempt under Sections 30(1), 30(2)(a) and 35 of the Trade
Marks Act. Google’s policy on use of trademarks is in line with the honest
and widespread industrial and commercial practices followed in the online
keyword advertising industry and amounts to nominative fair use under
Section 30 of the Trade Marks Act. The Descriptive use of a trademark is
permissible under Section 30(2)(a) and Section 35 of the Trade Marks
Act.
7.46 “Advertising” is a part of free speech/right to carry on business
protected by the Constitution of India. The trademark law itself recognizes
international exhaustion of rights and also various instances of “fair use”
of a trademark where a registered trademark can be lawfully used by a
person/advertiser, not being its registered proprietor or permitted user
even within the text of his advertisement, such as in case of comparative
advertising, bona fide use of the trademark by informational, news related
and review based websites or by authorized resellers.
7.47 If a competitor can be permitted to include the trademark of his
competitor within his advertisement under the principles of comparative
advertising or in a descriptive sense or in a nominative sense in the
physical world, the same principles and the same defences ought to apply
to the field of internet advertising as well.
7.48 Further, Google is an ‘intermediary’ under the IT Act, and falls
under the benefit of exception under Section 79 of the IT Act. The
advertisements as well as the keywords used to trigger the display of
eligible advertisements vide Google Ads Programme are third-party data,
in respect to which Google plays a content-neutral role. This information
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is available over Google Ads on an “as is” basis. Each and every element
of an Ad is created and provided solely by the advertiser and the triggering
of display of the Ad on Google Search is subject to advertiser’s inputs and
approvals.
7.49 Google Ads merely provides an advertising platform and interface
for creating and placing such an Ad on Google Search. Google is thereby
an intermediary in relation to Google Ads. Google is entitled to safe
harbour in the context of advertisements, which are solely generated by
advertisers. If such advertisements violate the law, it is the advertiser who
is liable for such violation and Google enjoys immunity to the extent that
it is a platform provider. Google’s takedown of advertisements which
violate its policies, either on a voluntary basis or on receipt of a complaint,
does not take away or dilute its safe harbour and is in accordance with the
role of an intermediary under Rule 3(1)(d) of the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
(“Intermediary Guidelines”).
7.50 The Keyword Planner Tool does not disentitle Google from the
defence under Section 79 of the IT Act. The Keyword Planner Tool is a
standalone, optional research tool offered by Google for the benefit of
advertisers to gain statistical information and understanding/insight about
the kind of words, expressions, combinations that may be relevant for an
advertiser to consider as keywords. It is only for the internal reference of
advertisers and is not publicly accessible to anyone. Keyword Planner
Tool is not a mandatory step for creating and/or running advertisements on
Google Ads. It is merely a free of cost software tool that is additionally
made available to an advertiser to help the advertiser to plan an ad
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campaign, subject to the advertiser actually wanting to avail himself of the
said software/ tool.
7.51 An advertiser is free at all times to use /not use the Keyword
Planner Tool and has the full discretion to provide or not provide a
keyword, irrespective of whether it forms a part of Keyword Planner or
not, and can provide a keyword that is not a part of the Keyword Planner
Tool at all. Providing a legitimate tool as an online platform provider does
not dilute or take away Google’s safe harbour as there is no restriction on
the provision of optional assistive tools by an intermediary under Section
79 of the IT Act. Provision of value-added services does not disentitle the
intermediary from the safe harbour provided under Section 79 of the IT
Act.
7.52 Google has placed reliance on the decisions of the Division Bench
4
in the case of Google LLC Versus DRS Logistics (P) Limited and Others
as well as Google LLC Versus Makemytrip (India) Private Limited and
5
Others , in order to contend that use of trademarks as keywords does not
amount to infringement under the Trade Marks Act. Google has further
placed reliance on the decision of this Court in the case of Policybazaar
Insurance Web Aggregator and Another Versus Coverfox Insurance
6
Broking Pvt. Ltd. and Others .
7.53 The plaintiff is not entitled to any damages as no case of
infringement has been made out by the plaintiff. Further, no evidence has
been produced by the plaintiff to substantiate that the purported loss and
damage was attributable directly to Google’s acts or omission.

4
2023 SCC OnLine Del 4809
5
2023 SCC OnLine Del 7965
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 36 of 163

ANALYSIS AND FINDINGS OF COURT:
8. I have heard learned counsels for the parties and perused the record.
Proceedings before the Court:
th
8.1 At the outset, it is noted that vide order dated 04 September, 2017,
both the suits, i.e., CS (COMM) 591/2017 and CS (COMM) 592/2017 ,
were re-numbered as commercial suits from the erstwhile nomenclature of
original suits bearing nos. CS (OS) 3314/2014 and CS (OS) 594/2013 ,
respectively, upon request of the parties.
8.2 Further, both the suits, i.e., CS (COMM) 591/2017 and CS (COMM)
592/2017 , were consolidated by this Court with the consent of the parties
th
vide order dated 18 December, 2018, for the purpose of recording of
evidence.
rd
8.3 It is noted that vide order dated 03 April, 2013 in CS (COMM)
592/2017 (earlier numbered as CS (OS) 594/2013) , this Court had granted
an ex-parte ad interim injunction in favour of the plaintiff and against the
rd
defendants. The directions as issued in order dated 03 April, 2013, are
reproduced as under:
“xxx xxx xxx

9. Having regard to the submissions made by the counsel for the
plaintiff, as noted hereinabove, and upon perusing the averments
made in the plaint and the documents placed on record, this Court is
of the prima facie opinion that the plaintiff is entitled to grant of an
ex parte ad interim injunction in its favour. Accordingly, till further
orders, the defendants, their officers, partners, servants, dealers,
agents, franchisees, representatives, etc., are restrained from
using/permitting user of the word "HINDWARE", which is the
registered trademark of the plaintiff or any other mark/name that is
identical/deceptively similar to the plaintiff's registered trademark,
"HINDWARE" as an adword/key word for the purpose of advertising
on the internet in respect of the products that are manufactured and

6
2023 SCC OnLine Del 5523
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 37 of 163

sold by the defendant No.2 under the mark "CERA".

xxx xxx xxx”
(Emphasis Supplied)

th
8.4 Further, vide order dated 10 November, 2014 in CS (COMM)
591/2017 (earlier numbered as CS (OS) 3314/2014) , this Court took note
rd
of the interim order dated 03 April, 2013 passed in CS (COMM)
592/2017 , and passed an interim injunction against the defendants in CS
(COMM) 591/2017 , in the following manner:
“xxx xxx xxx

For the detailed reasons given in the order dated 03.04.2013 in
CS(OS) 594/2013 and having regard to the submissions made by the
counsel for the plaintiff and upon perusal of the averments in the
plaint and documents on record, till the next date of hearing, the
defendants, their representatives, dealers, distributors and/or anyone
acting for on their behalf are restrained from using or permitting
user of the word ‘HINDWARE’, which is the registered trademark of
the plaintiff or any other mark/name i.e. identical/deceptively similar
to the plaintiff’s registered trademark, 'HINDWARE' as an
adword/key word for the purpose of advertising on the internet in
respect of the products that are manufactured and sold by the
defendant No.1 under the mark ‘GROHE’.

xxx xxx xxx”
(Emphasis Supplied)

th
8.5 Subsequently, vide order dated 18 December, 2018, both the
rd th
interim orders dated 03 April, 2013 and 10 November, 2014, were made
absolute till the disposal of the suits. The relevant portion of order dated
th
18 December, 2018, is reproduced as under:
“xxx xxx xxx

Since the evidence is already being recorded in the present
cases and as the reliefs sought in the injunction applications are the
same as the final reliefs, this Court is of the view that it would not be
appropriate to dispose of the injunction applications or the
applications for vacation of the interim orders by way of a detailed
order as it may prejudice either of the parties.


Consequently, the interim arrangements made by learned
th
Predecessors of this Court vide order dated 10 November, 2014 in
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 38 of 163

rd
CS (COMM) 591/2017 and the order dated 3 April, 2013 in CS
(COMM) 592/2017 shall continue till the disposal of the suits.

xxx xxx xxx”
(Emphasis Supplied)

8.6 Separate issues were framed in both the suits. In CS (COMM)
st
591/2017 , this Court vide order dated 21 December, 2016, framed the
following issues:
“xxx xxx xxx

On the pleadings of the parties following issues are framed:

1. Whether this court has no territorial jurisdiction? OPD

2. Whether the plaintiff is entitled to relief claimed by it and
objections raised by defendant no. 2 in its written statement? OPD-2

3. Whether the suit is not maintainable qua defendant nos.2 and 3 in
view of settlement dated 24.11.2015 between the plaintiff and
defendant no. 1? OPD-2 and 3

4. Whether the plaintiff is entitled to relief claimed by it in Para 34 (a)
and (b) of the plaint? OPP

5. Whether the plaintiff is entitled to damages of ₹21 lakhs as claimed
by it? OPP

6. Relief.

xxx xxx xxx”

st
8.7 In CS (COMM) 592/2017 , this Court vide order dated 21
December, 2016, framed the following issues:
“xxx xxx xxx

On the pleadings of the parties following issues are framed:

1. Whether this court has no territorial jurisdiction? OPD

2. Whether the suit is bad for mis-joinder of parties i.e. Defendant
no.1? OPD-1

3. Whether the plaintiff is entitled to relief claimed by it in Para 34 (a)
and (b) of the plaint? OPP

4. Whether the plaintiff is entitled to damages of ₹21 lakhs as claimed
by it? OPP

5. Relief.

xxx xxx xxx”
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 39 of 163

8.8 In relation to framing of issues, this Court also notes that the
plaintiff had filed applications, i.e., I.A. 10073/2017 in CS (COMM)
591/2017 and I.A. 10067/2017 in CS (COMM) 592/2017 , by way of which
the plaintiff sought to place on record a judgment declaring
‘HINDWARE’ as a well-known mark. However, this Court vide order
th
dated 14 November, 2017, passed in both the suits, disposed of both the
applications, while noting that an issue would have to be framed in that
regard, to which the plaintiff stated that they shall cite the judgment
declaring their mark as well-known at the time of arguments. Thus, no
th
issue was framed in that regard. The relevant portion of order dated 14
November, 2017, is reproduced as under:
“xxx xxx xxx

Present application has been filed by plaintiff for placing on
record two documents. First is the judgment declaring HINDWARE as
well known mark and second is a Board Resolution of 2016 granting
authority to Mr. A.K. Mohanty to file the present suit.

In the opinion of this Court, if the plaintiff wishes to lead
evidence to show that the mark in question is a well known mark,
then an issue with regard to the same would have to be framed.

At this stage, learned counsel for plaintiff states that he would
cite the judgment declaring the plaintiffs mark to be a well known
mark as a precedent at the time of arguments.

Recording the aforesaid statement, the present application is
allowed qua only the Board Resolution of 2016.

xxx xxx xxx”
(Emphasis Supplied)

8.9 At this stage, it would be relevant to advert to the timelines with
regard to the evidence led by the parties, which is reproduced in tabular
form, as under:
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 40 of 163

S.NO. STAGE CS (COMM)
CS (COMM)
591/2017
592/2017
1. Recording of
To be listed before Joint Registrar – order
st
dated 21 December, 2017

2. Recording of
Evidence
Appointment of Local
Commissioner for
recording of evidence
th
– order dated 12
April, 2017

Appointment of Local
Commissioner – order
th
dated 24 April, 2017
Evidence
th
Order dated 12 April, 2017 recalled, the Joint
th
Registrar to record evidence – order dated 07
September, 2018

4. Plaintiff’s
3. Recording of
Evidence
nd
PW-1/Mr. A.K. Mohanty – Order dated 02
November, 2018
evidence
commenced
th
Order dated 18 December, 2018
5. Consolidation
of suits for
recording the
evidence
th
Order dated 10
January, 2019
6. PW-1


discharged by
defendant nos.
3 and 4
-
7. PW-1



Settlement of plaintiff
with defendant no. 2,
therefore, PW-1 is not
required to be
examined by
defendant no. 2 –
th
Order dated 24
discharged
-
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 41 of 163

April, 2019

8. Plaintiff’s
PW-2/Mr. A.K.
Thakur discharged by
defendant nos. 2 and
3. Plaintiff’s evidence
is closed in affirmative
th
– Order dated 16
May, 2019

PW-3/Mr. Pradeep
Sugachand
discharged. Plaintiff’s
evidence closed in
affirmative – Order
th
dated 30 July, 2019
evidence closed
9. Defendant no.
D3 W-1, i.e., Mr.
Gavin Chariston
examined in chief –
th
04 December, 2019
D4 W-1, i.e., Mr.
Gavin Chariston
examined in
chief/cross
examination
complete, and he is
discharged – Order
th
dated 04 December,
2019

10. Defendant nos.
3/4’s evidence
D2 W-1/Ms. Gitanjali
Duggal examined and
discharged.
D3 W-1/Mr. Gavin
Chariston cross-
examined and
discharged.
D3 W-1/Ms. Gitanjali
Duggal examined and
discharged.

Evidence closed –
th
order dated 05
December, 2019

2 and 3’s/3 and
4’s evidence
closed

Evidence closed –
th
order dated 05
December, 2019



Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 42 of 163

Issue-wise findings:
Issue No. 1 in CS (COMM) 591/2017: Whether this court has no
territorial jurisdiction? OPD
Issue No. 1 in CS (COMM) 592/2017: Whether this court has no
territorial jurisdiction? OPD
9. The present suit has been filed for permanent injunction for
restraining the defendants from violation and infringement of rights of the
plaintiff in its trademark HINDWARE. Though the present suits stand
settled qua the other defendants, the question of jurisdiction of this Court
has been raised in the present issues which has to be seen from the time of
filing of the present suits.
10. It is the case on behalf of Google that the plaintiff does not have an
office in Delhi, but rather in Kolkata, indicative of which is the Screenshot
of plaintiff’s website that shows they have no office in Delhi. Further, no
evidence has been led by the plaintiff to show that business has been
carried out from the trading division address in Delhi.
11. The aspect of territorial jurisdiction of a Court in trademark matters
attracts two provisions, i.e., Section 20 of CPC and Section 134 of the
Trade Marks Act. In light of the applicability of the two aforesaid
provisions, it would be apposite to understand the interplay between the
said provisions, with regard to the right of the plaintiff in instituting a suit.
Thus, this Court in the case of Burger King Corporation Versus
7
Techchand Shewakramani and Others , while relying upon the
judgements of the Supreme Court and the Division Bench of this Court,
held as follows:
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 43 of 163

“xxx xxx xxx

17. A perusal of the above paras clearly shows that insofar as the
explanation to Section 20 is concerned, the same relates to Section
20(a). The Supreme Court categorically observes that Section 20
enables the plaintiff to file a suit where the cause of action arises
under Section 20(c). The remainder of the judgment in IPRS v. Sanjay
Dalia [Indian Performing Rights Society Ltd. v. Sanjay Dalia, (2015)
10 SCC 161 : (2016) 1 SCC (Civ) 55 : (2015) 63 PTC 1] primarily
deals with and interprets the manner in which Section 134 of the TM
Act and Section 62 of the Copyright Act can be invoked, but does not
dilute the principle of Section 20(c) CPC in any manner whatsoever.
Even the Division Bench judgment of this Court in Ultra Home
Construction (P) Ltd. case [Ultra Home Construction (P)
Ltd. v. Purushottam Kumar Chaubey, 2016 SCC OnLine Del
376 : (2016) 227 DLT 320] while interpreting Section 134 of the TM
Act and Section 62(2) of the Copyright Act has laid down various
tests. However, what is interesting is the observation of the Division
Bench in Ultra Home Construction (P) Ltd. case [Ultra Home
Construction (P) Ltd. v. Purushottam Kumar Chaubey, 2016 SCC
OnLine Del 376 : (2016) 227 DLT 320] is as under : (Ultra Home
Construction (P) Ltd. case, SCC OnLine Del para 14)

“14. It is evident from the above observations that the
interpretation given to the expression ‘carries on business’ in
the context of a defendant under Section 20 of the Code has
also been employed in the context of a plaintiff under the said
Sections 134(2) and 62(2). Thus, in addition to the places
where suits could be filed under Section 20 of the Code, the
plaintiff can also institute a suit under the Trade Marks Act,
1999 and the Copyright Act, 1957, as the case may be, by
taking advantage of the provisions of Section 134(2) or
Section 62(2), respectively. Both the latter provisions are in pari
materia. Under these provisions four situations can be
contemplated in the context of the plaintiff being a corporation
(which includes a company). First of all, is the case where the
plaintiff has a sole office. In such a case, even if the cause of
action has arisen at a different place, the plaintiff can institute a
suit at the place of the sole office. Next is the case where the
plaintiff has a principal office at one place and a subordinate or
branch office at another place and the cause of action has
arisen at the place of the principal office. In such a case, the
plaintiff may sue at the place of the principal office but cannot
sue at the place of the subordinate office. The third case is

7
2018 SCC OnLine Del 10881
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 44 of 163

where the plaintiff has a principal office at one place and the
cause of action has arisen at the place where its subordinate
office is located. In this eventuality, the plaintiff would be
deemed to carry on business at the place of his subordinate
office and not at the place of the principal office. Thus, the
plaintiff could sue at the place of the subordinate office and
cannot sue [under the scheme of the provisions of Sections
134(2) and 62(2)] at the place of the principal office. The fourth
case is where the cause of action neither arises at the place of
the principal office nor at the place of the subordinate office but
at some other place. In this case, the plaintiff would be deemed
to carry on business at the place of its principal office and not
at the place of the subordinate office. And, consequently, it
could institute a suit at the place of its principal office but not at
the place of its subordinate office. All these four cases are set
out in the table below for greater clarity: ……….

18. Thus, the provisions of Section 134 of the TM Act and Section 62
of the Copyright Act are in addition to and not in exclusion of
Section 20 CPC. If the plaintiff can make out a cause of action
within the territorial jurisdiction of this court under Section 20, no
reference needs to be made to Section 134.

xxx xxx xxx”
(Emphasis Supplied)

12. Reading of the aforesaid judgement makes it apparent that the
provision of Section 134 of the Trade Marks Act is in addition to and not
in exclusion of Section 20 of CPC. The plaintiff can make out a case under
Section 20 of CPC or under Section 134 of the Trade Marks Act, for the
purposes of territorial jurisdiction.
13. Section 20 of CPC, is reproduced as under:
“ 20. Other suits to be instituted where defendants reside or cause of
action arises.

Subject to the limitations aforesaid, every suit shall be instituted in a
Court within the local limits of whose jurisdiction

(a) the defendant , or each of the defendants where there are more
than one, at the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally works for
gain ; or

Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 45 of 163

(b) any of the defendants , where there are more than one, at the time
of the commencement of the suit, actually and voluntarily resides, or
carries on business , or personally works for gain, provided that in
such case either the leave of the Court is given, or the defendants who
do not reside, or carry on business, or personally works for gain, as
aforesaid, acquiesce in such institution; or

(c) The cause of action, wholly or in part, arises.

[Explanation].-- A corporation shall be deemed to carry on business
at its sole or principal office in [India] or, in respect of any cause of
action arising at any place where it has also a subordinate office, at
such place. ”
(Emphasis Supplied)
14. Thus, Section 20(c) of CPC provides the plaintiff with the right to
file a suit at any place where the cause of action arises wholly or in part.
Further, Section 20(a) provides for a right to the plaintiff to file a suit at a
place of business of the defendant or where the defendant carries on
business or personally works for gain.
15. Section 134 of the Trade Marks Act provides an ancillary right to
the plaintiff, to choose a forum for filing a suit for infringement in a place
where it carries on business or personally works for gain. Section 134 of
the Trade Marks Act, is reproduced as under:
“xxx xxx xxx

134. Suit for infringement, etc. to be instituted before District
Court .—(1) No suit—

(a) for the infringement of a registered trade mark; or
(b) relating to any right in a registered trade mark; or
(c) for passing off arising out of the use by the defendant of any trade
mark which is identical with or deceptively similar to the plaintiff's
trade mark, whether registered or unregistered,

shall be instituted in any court inferior to a District Court having
jurisdiction to try the suit.

(2) For the purpose of clauses (a) and (b) of sub-section (1), a
“District Court having jurisdiction” shall, notwithstanding anything
contained in the Code of Civil Procedure, 1908 (5 of 1908) or any
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 46 of 163

other law for the time being in force, include a District Court within
the local limits of whose jurisdiction, at the time of the institution of
the suit or other proceeding, the person instituting the suit or
proceeding, or, where there are more than one such persons any of
them, actually and voluntarily resides or carries on business or
personally works for gain.

Explanation.—For the purposes of sub-section (2), “person”
includes the registered proprietor and the registered user.

xxx xxx xxx”
(Emphasis Supplied)

16. The aforesaid provision provides for a right to a registered
proprietor to institute a suit for infringement and/or passing off in relation
to violation of their registered trademarks, in a Court having jurisdiction to
try the suit. The provision provides for an additional forum to the plaintiff
to institute a suit where such plaintiff actually and voluntarily resides or
carries on business or personally works for gain.
17. The usage of the word, ‘District Court’ in the provision, on a bare
reading may allow for interpretation that a suit for infringement can only
be instituted before the District Courts. However, the position of law
already stands clarified that keeping into consideration the mention of,
“No suit....shall be instituted in any court inferior to a District Court
having jurisdiction to try the suit” , would verily include High Courts
which are not inferior to a District Court. Moreover, keeping in view the
original jurisdiction of this Court, along with the mandate of the
Commercial Courts Act, 2015, would make it apparent that harmonious
reading of the enactments provides that all Courts not inferior to District
Court, including High Courts, are read into the definition of ‘District
Court’ for the purposes of Section 134 of the Trade Marks Act. Reference
in this regard is made to the judgement in the case of Tractors & Farm
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 47 of 163

8
Equipment Limited Versus Massey Ferguson Corp. , wherein it was held
as follows:
“xxx xxx xxx

13.4. One other point (fourth point) that was urged is that the High
Court (Original Side) is not a District Court. A straightforward
answer to this lies in the language in which Section 134(1) of ‘the
Trade Marks Act, 1999’ [‘TM Act, 1999’ for the sake of convenience]
is couched. Section 134(1) of TM Act, 1999 makes it clear that a suit
shall not be instituted in any Court inferior to a District Court
having jurisdiction, meaning, as long as there is territorial
jurisdiction, a Court which is not inferior i.e., below the District
Court in the ‘hierarchy of Courts’ (connotation) as we understand
the expression ‘inferior’ cannot be approached. High Court
(Original Side) is obviously above the District Court in the hierarchy
of Courts and therefore, this does not present a problem.

xxx xxx xxx”
(Emphasis Supplied)


18. Keeping into consideration the aforesaid discussion and the facts of
the case, it is noted that the products of all the defendants are available and
sold within the jurisdiction of Delhi. Further, the website of contesting
defendants, Google, i.e., www.google.com , can be accessed from Delhi.
Moreover, the plaintiff also conducts its business in Delhi, and its products
are available in Delhi. Thus, in the case of Corona Remedies Pvt. Ltd.
9
Versus UMAC Pharmaceuticals and Others , this Court held that since
both plaintiff and defendant carry out business in Delhi, this Court would
have jurisdiction. Further, the Court also held that if the products of the
plaintiff are available on the E-commerce website accessible in Delhi and
the same are sold by distributors and stockists, jurisdiction would be
conferred on this Court. Further, Section 20 of CPC allows the jurisdiction
to be invoked where the defendant carries on business and Section 134 of

8
2024 SCC OnLine Mad 8314
9
2023 SCC OnLine Del 4818
Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 48 of 163

Trade Marks Act, allows jurisdiction of a Court where the plaintiff carries
on business, and the plaintiff can choose the same as per convenience.
Thus, in the aforesaid judgement, it has been held as follows:
“xxx xxx xxx

17. In the afore-extracted paragraphs 43 and 44, the plaintiff has
clearly averred that the respondent's medicines, bearing the
impugned mark, were being sold within the territorial jurisdiction of
the Saket District Court. The plaintiff, in fact, claimed to have
procured the goods from Respondent, situated at Govindpuri,
Kalkaji, which was within the jurisdiction of the Saket District
Court. The plaintiff also claimed to be carrying on business within
such jurisdiction, by averring that it had its distributors and stockists
in Delhi and was selling goods under the trade mark “MAC-RD” in
South East Delhi in Okhla, Badarpur, Lajpat Nagar, Defence
Colony, Kalkaji through its authorised distributor Novopharm, as
well as at Balaji Medicos, Kotla Mubarakpur. These areas also fell
within the jurisdiction of the learned Saket District Court. As such,
there were pointed averments in the plaint to the effect that the
plaintiff as well as the defendants were both carrying on their
business within the jurisdiction of the learned Saket District Court.

18. Moreover, in para 17 of the plaint, the plaintiff has also averred
that the products of the plaintiff are available for sale on e-
commerce websites which could be accessed, and across which
transactions could be concluded, within the territorial jurisdiction of
the learned Saket District Court. The said paragraph reads thus:

“17. The Plaintiff's products under the trademark are also
available on leading e-commerce portal
such www.1mg.com , www.apollopharmacy.in , www.indiamart.c
om etc. Further, the search on www.google.in for the term MAC-
RD reflect the products of the Plaintiff only and also leads to the
Plaintiff's website www.coronaremedies.com which indicates
that the goods of Plaintiff under the trade mark MAC-RD are
extremely popular in India. Moreover, the Plaintiff has its
presence in all the metro cities of India.”


19. Section 134 of the Trade Marks Act permits an infringing suit to
be instituted within the territorial jurisdiction of any court within
which the plaintiff carries on business. Section 20 of
the CPC permits a plaint to be instituted before any court within
whose territorial jurisdiction, the defendant carries on business or
the whole, or part, of the cause of action arises.

Signature Not Verified
Digitally Signed
By:HARIOM SHARMA
Signing Date:22.05.2026
20:47:29
CS(COMM) 591/2017 & CS(COMM) 592/2017 Page 49 of 163

20. In Ultra Homes Construction Pvt. Ltd. v. Purushottam Kumar
Chaubey, the Division Bench of this Court, speaking through S.
Ravindra Bhat, J. as he then was, has clearly held that Section 134
of the Trade Marks Act provides an additional forum before which
infringing suit could be instituted, apart from the court which would
have territorial jurisdiction to deal with the matter under
Section 20 of the CPC. As such, an infringing suit could be
instituted before any court which would have territorial jurisdiction
either under Section 134 of the Trade Marks Act or under
Section 20 of the CPC.

21. In the present case, the averments contained in paras 43 and 44
of the plaint conferred territorial jurisdiction on the learned Saket
District Court to entertain a decide the plaintiff's suit both under
Section 134 of the Trade Marks Act as well as under Section 20 of
the CPC. The impugned judgment of the learned ADJ indicates that,
in fact, the learned ADJ has not even addressed the issue of
jurisdiction vis-à-vis Section 134 of the Trade Marks Act and has
merely restricted his discussion to Section 20 of the CPC, with respect
to which, too, the findings in the impugned judgment are not
sustainable in law or on facts.

xxx xxx xxx”

(Emphasis Supplied)
19. In the present case, the plaintiff has clearly deposed in its Evidence
by way of Affidavit that the plaintiff has its office in Delhi and conducts
business in Delhi. Further, the defendant nos. 1 and 2 respectively in both
suits, i.e., Grohe and Cera, have been stated to be carrying on business for
profit and gain in Delhi through their extensive network of dealers and

showrooms located in Delhi.

20. Section 20 of CPC confers jurisdiction on the Courts within the
local limits of whose jurisdiction the cause of action, wholly or in part,
arises. In the present case, Google operates its website, i.e.,
www.google.com , which is accessible all across the country. Along with
the same, Google provides its AdWords Programme services all across the
country as well, indicative of which is Google’s AdWords Policy which is
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specifically for India. Further, Google having its AdWords Programme
available in Delhi as well, by way of which Google enters into commercial
transactions, would also inure jurisdiction upon this Court.
21. In this regard, reference is made to the judgement of the Division
10
Bench of this Court in the case of Raju Kumar Versus Vinod Sah ,
wherein, it has been held as follows:
“xxx xxx xxx

20. Section 20 CPC specifically empowers a plaintiff to sue a
defendant before any court within which the defendant principally
carries on its business or where the whole or part of the cause of
action has arisen. As we have held in our decisions in Diamond
Modular and Kohinoor-II, prominently following the earlier
Division Bench in World Wrestling Entertainment, in the e-
commerce age, every virtual platform over which the defendant's
goods or services would be available operates as a brick and mortar
store present in every location where that website is accessible.
Though, in Banyan Tree Holding, the Court had held that it is
necessary to show conclusion of a commercial transaction over the
said website, that position now does not survive after the decision in
World Wrestling Entertainment, which postulates that even the
possibility of concluding a commercial transaction would be
sufficient. Tata Sons further dilutes the principle by holding that
even the possibility of interacting over a website, without any
commercial element involved, would also be sufficient to invoke
territorial jurisdiction of a particular court within whose jurisdiction
the website is accessible.

xxx xxx xxx”
(Emphasis Supplied)

22. During his cross examination, the witness for Google, D3W-1 ,
clearly admitted that the Google search engine is accessible on online
portal in India, including, Delhi. Further, it was also admitted that after
Grohe was successful in bidding for the keywords in question in the
AdWords Programme, their advertisement was visible online on Google’s

10
2026 SCC OnLine Del 893
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website throughout India, including, Delhi. The relevant portions of the
cross examination read as under:
“xxx xxx xxx

Q1. Is it correct that after GROHE was successful in bidding for the
key words in question in ADWORD programme, their advertisement
was visible, on online, through out India during the relevant time?

A. Yes. It may have in Delhi also.

Q2. Is it correct that for the purpose of key words bid by GROHE,
the agreement was between GROHE and defendant no.2 but the
ADWORD programme was managed by defendant no.3?

A. Yes.

It is correct that the normal Google research results are
distinct from ADWORD advertisement result and are not organic
search results i.e. advertisements are not organic search results.

xxx xxx xxx”
(Emphasis Supplied)

23. Perusal of the aforesaid cross examination clearly evidences that the
advertisement of defendant – Grohe after bidding successfully for
keywords in AdWords Programme, was visible in Delhi. Clearly, part
cause of action has arisen in Delhi against Google, and this Court has
territorial jurisdiction over the subject matter of the present suits.
24. Further, in the case of Laxman Prasad Versus Prodigy Electronics
11
Ltd. and Another , the Supreme Court held that even if part cause of
action has arisen in New Delhi, such as use of the trademark in Delhi, the
Court would have territorial jurisdiction to deal with the matter. In the
present case, Google entered into an Agreement with Cera and Grohe and
the use of the plaintiff’s mark in the AdWords Programme of Google could
be accessed from Delhi. Thus, this Court would have jurisdiction to deal

11
(2008) 1 SCC 618
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with the matters at hand. The Supreme Court in the aforesaid judgement,
accordingly, has held as follows:
“xxx xxx xxx

46. Territorial jurisdiction of a court, when the plaintiff intends to
invoke jurisdiction of any court in India, has to be ascertained on
the basis of the principles laid down in the Code of Civil Procedure.
Since a part of “cause of action” has arisen within the local limits of
Delhi as averred in the plaint by the plaintiff Company, the question
has to be considered on the basis of such averment. Since it is
alleged that the appellant-defendant had committed breach of
agreement by using trade mark/trade name in Trade Fair, 2005 in
Delhi, a part of cause of action has arisen in Delhi. The plaintiff
Company, in the circumstances, could have filed a suit in Delhi. So
far as applicability of law is concerned, obviously as and when the
suit will come up for hearing, the Court will interpret the clause and
take an appropriate decision in accordance with law. It has, however,
nothing to do with the local limits of the jurisdiction of the Court.

47. The High Court, in our opinion, was right in rejecting the
application and in overruling preliminary objection. Since prima
facie the plaint disclosed a cause of action as also territorial
jurisdiction of the Court, the High Court rightly rejected both the
contentions and no error was committed by it in not rejecting plaint,
nor returning it for presentation to proper court. “ Applicability of
Hong Kong law”, “entering into an agreement in Hong Kong” or
“defendant residing in Ghaziabad (Uttar Pradesh)” or any of them
does not take away the jurisdiction of the Delhi Court since a “cause
of action” at least in part, can be said to have arisen in Delhi. We,
therefore, see no substance in the contention of the appellant-
defendant.

xxx xxx xxx”
(Emphasis Supplied)

25. Likewise, holding that a suit can be filed in terms of Section 20 of
the CPC in a Court within whose territorial jurisdiction the defendant
carries on business or cause of action wholly or partly arises, the Supreme
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Court in the case of Harshad Chiman Lal Modi Versus DLF Universal
12
Ltd. and Another , held as follows:
“xxx xxx xxx


21. A plain reading of Section 20 of the Code leaves no room for
doubt that it is a residuary provision and covers those cases not
falling within the limitations of Sections 15 to 19. The opening
words of the section, “subject to the limitations aforesaid” are
significant and make it abundantly clear that the section takes
within its sweep all personal actions. A suit falling under Section 20
thus may be instituted in a court within whose jurisdiction the
defendant resides, or carries on business, or personally works for
gain or cause of action wholly or partly arises. ”

xxx xxx xxx
(Emphasis Supplied)

26. Considering the aforesaid discussion, it is held that this Court has
the territorial jurisdiction to entertain the present cases. Therefore, issue
no. 1 in both suits is decided in favour of the plaintiff and against the
defendant.
Issue No. 2 in CS (COMM) 592/2017: Whether the suit is bad for mis-
joinder of parties, i.e., Defendant no.1? (OPD-1)
27. This Court notes that in CS (COMM) 592/2017 , the issue was
framed in relation to mis-joinder of defendant no. 1, i.e., Omkara Infoweb
to be proved on part of defendant no. 1. However, this Court notes that
defendant no. 1 has entered into a settlement with the plaintiff vide
th
Settlement Agreement dated 08 November, 2017. Further, an application,
i.e., I.A. No. 13863/2017 in CS (COMM) 592/2017 , has been filed under
Order XXIII Rule 3 of CPC, by plaintiff and defendant no. 1 to bring on
record the said settlement and for passing of decree in favour of plaintiff
and against defendant no. 1.

12
(2005) 7 SCC 791
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28. In light of the aforesaid development, no evidence has been led on
part of defendant no. 1 in that regard, and accordingly, on account of the
settlement, the issue of mis-joinder is decided in favour of the plaintiff and
against defendant no. 1.
29. At this stage, this Court notes that Google has made certain
averments in relation to non-joinder of parties, i.e., defendant nos. 1 and 2
respectively in both the suits, on the ground that the present suits cannot
be decided in the absence of the parties that are alleged to be actually
advertising on the Google’s AdWords Programme. However, the argument
raised by Google claiming non-joinder of parties was not framed as an
issue before this Court.
30. In this regard, this Court notes that the issues in both the suits were
st
framed vide orders dated 21 December, 2016. In the said orders the Court
had categorically recorded that, “No other issue is pressed or arises” .
31. Moreover, the aspect of settlement of defendant nos. 1 and 2
respectively in both the suits, i.e., Grohe and Cera, was known to Google
as the Settlement Agreements were entered by the said defendants with the
th th
plaintiff on 24 November, 2015 and 07 March, 2019, respectively.
However, no attempt was made or application was filed on behalf of
Google for amendment, or, for raising additional issues, which as per
Order XIV Rule 5 of CPC could have been amended at any time before
passing of a decree. It was only at the time of filing the written
submissions at the stage of final hearing of the matters, which were filed
th
on 16 December, 2024, that the issue of non-joinder was first raised
before this Court by Google.
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32. Thus, in light of the same, this Court cannot adjudicate upon the
issue of non-joinder of parties raised by Google at this belated stage. The
law in this regard is well-settled that a Court is not to decide on a matter
on which no issue has been framed. Further, it is the issues that are fixed
and not the pleadings that guide the parties in the matter of adducing
evidence. Thus, the Supreme Court in the case of Kalyan Singh Chouhan
13
Versus C.P. Joshi , has held as follows:
“xxx xxx xxx


24. Therefore, it is neither desirable nor required for the court to
frame an issue not arising on the pleadings. The court should not
decide a suit on a matter/point on which no issue has been framed.
(Vide Bommadevara Venkata Narasimha Naidu v. Bommadevara
Bhashyakarlu Naidu [(1901-02) 29 IA 76], Sita Ram v. Radha Bai
[AIR 1968 SC 534], Gappulal v. Thakurji Shriji Shriji
Dwarakadheeshji [(1969) 1 SCC 792: AIR 1969 SC 1291] and
Biswanath Agarwalla v. Sabitri Bera [(2009) 15 SCC 693: (2009) 5
SCC (Civ) 695].)

25. The object of framing issues is to ascertain/shorten the area of
dispute and pinpoint the points required to be determined by the
court. The issues are framed so that no party at the trial is taken by
surprise. It is the issues fixed and not the pleadings that guide the
parties in the matter of adducing evidence. (Vide Sayad Muhammad
v. Fatteh Muhammad [(1894-95) 22 IA 4 (PC)])

xxx xxx xxx”
(Emphasis Supplied)

33. Thus, in view of the aforesaid discussion, the argument of Google
qua mis-joinder and non-joinder of parties is rejected.
34. The present issue is decided in favour of the plaintiff and against the
defendants.

13
(2011) 11 SCC 786
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Issue No. 3 in CS (COMM) 591/2017: Whether the suit is not
maintainable qua defendants no. 2 and 3 in view of settlement dated
24.11.2015 between the plaintiff and defendant no. 1? (OPD 2 & 3)
35. The issue at hand requires this Court to consider whether in view of
the settlement arrived at between plaintiff and defendant no. 1, i.e., Grohe,
the suit is maintainable against Google.
36. It is the case on behalf of Google that on account of the settlement,
the suit would not be maintainable, as defendant no. 1 is one of the
advertisers on Google’s platform, and in the absence of the party who was
advertising or the advertisement, no cause of action will arise against
Google.
37. It is also the case of Google that on account of the Settlement
th
Agreement dated 24 November, 2015 and decree against defendant no. 1
th
vide order dated 27 November, 2015, in an application under Order
XXIII Rule 3 of CPC, i.e., I.A. 24410/2015 , the plaintiff cannot seek to
restrain Google in rem.
38. It is to be noted that for maintaining a case against Google, the
plaintiff has to show that a cause of action has arisen against Google. The
moot question in that regard would be whether there exists any actionable
claim of the plaintiff against Google with respect to infringement of its
trademark. The answer to the same would be in the positive.
39. In the present case, the plaintiff has alleged independent and joint
cause of action against Google. Further, the plaintiff has since the stage of
registration of plaint, claimed specific reliefs against Google. It is noted
that Google has admittedly used the registered mark of the plaintiff,
HINDWARE, in relation to its AdWords Programme. In this regard,
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reference is made to the cross examination of D3W-1 , Mr. Gavin
Chariston, reading of which, clearly manifests that Google allows for
bidding and auction of registered trademarks. In this case, the mark of the
plaintiff, i.e., HINDWARE was also being bid upon by other persons and
the same was available for bidding on Google’s AdWords Programme.
Further, it is admitted that no “prior consent or approval” was taken from
the owner of the registered trademarks before auctioning through Google’s
AdWords Programme. Moreover, it has categorically been admitted that
Google does not share any revenue with the owner of the trademark after
the successful bidding of such marks to other persons.
40. Thus, use of the mark of the plaintiff by Google for the purposes of
bidding and auctioning of the registered trademark of the plaintiff for use
as a keyword in furtherance of its AdWords Programme, itself suffices as
an independent cause of action against Google for institution of the present
suit. Further, Google entered into the AdWords Agreement with Grohe
with regard to the registered trademark of the plaintiff. Google’s
involvement in the present matter is significant and it plays a major role in
the matter under consideration, as without the accessibility of the
AdWords Programme provided by Google on its own website, by
advertisers such as Grohe, the question of use of the plaintiff’s trademark
by the said defendants, would not have arisen at all.
41. Thus, it is apparent that a separate, independent, distinct and
actionable cause of action exists against Google. An independent claim
can be lawfully maintained against Google. Therefore, the settlement of
defendant no. 1 and plaintiff, in no manner renders the suit qua Google, as
not maintainable.
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42. At this stage, this Court also finds it apposite to address the
argument advanced by Google in relation to involvement of Google India,
wherein it has been stated that Google India is a distinct entity from
Google LLC. It is the case of Google LLC that it operates the AdWords
Programme through its website, i.e., www.google.com , therefore, on
account of the same, there is no involvement of Google India in the
present matter.
43. This Court also notes another contention of Google that no case can
be made out against Google LLC also, as the same is not an Indian
company, and does not have its office in India. Therefore, it is contended
that no case is maintainable against Google LLC, as well.
44. The aforesaid contentions of Google are ex-facie flawed and if
accepted, no case or cause of action would ever arise against Google in
relation to its AdWords Programme.
45. In the present cases, cause of action has arisen against both Google
LLC and Google India. The website and the AdWords Programme as per
Google itself are being maintained by Google LLC. On that account itself,
taking into account the discussion hereinabove, there is a clear cause of
action against Google LLC. Further, Google India is a wholly owned
subsidiary of Google LLC which manages the operations of Google LLC
in India. Moreover, as is evident from the cross examination of D2W-1 and
the Evidence Affidavit of D3W-1 , it is an admitted fact that Google India
entered into the AdWords Agreement with the Indian entities for the
purposes of advertisement under the AdWords Programme run by Google
LLC.
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46. Thus, Google India being a subsidiary of Google LLC and Google
LLC conducting operations in India through the said entity, allows for a
cause of action against both Google LLC and Google India.
47. Thus, in view of the discussion above, and on account of there being
a clear cause of action against Google, which is independent of any cause
of action against defendant no. 1, the settlement arrived between plaintiff
and defendant no. 1, does not render the present suit as not maintainable
against Google.
48. Accordingly, the present issue is decided in favour of the plaintiff
and against defendant nos. 2 and 3.
Issue No. 2 in CS (COMM) 591/2017: Whether the plaintiff is entitled to
relief claimed by it and objections raised by defendant no. 2 in its written
statement? OPD-2

Issue No. 4 in CS (COMM) 591/2017: Whether the plaintiff is entitled to
relief claimed by it in Para 34 (a) and (b) of the plaint? OPP

Issue No. 3 in CS (COMM) 592/2017: Whether the plaintiff is entitled to
relief claimed by it in Para 34 (a) and (b) of the plaint? OPP

49. The plaintiff has filed the present suit seeking a decree of permanent
injunction in its favour and against the defendants for restraining
infringement, unfair competition and misuse of its registered trademark
HINDWARE. The plaintiff has also sought a decree of permanent
injunction restraining the defendants from using/misusing its registered
trademark “HINDWARE” or any other registered brand/name of the
plaintiff either as a part of advertising keywords, AdWords, or in any
manner whatsoever, so as to result in infringement of the plaintiff’s
statutory and common law rights.
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50. The plaintiff-company is one of the oldest sanitaryware companies
in the country and operates and undertakes its business under its trademark
st
“HINDWARE”. It is to be noted that vide judgment and order dated 21
April, 2017 passed by this Court in CS(OS) 2736/2014 , titled as “HSIL
Limited Versus Kripton Ceramics Pvt. Ltd. & Ors.” , the mark
“HINDWARE” was recognised to be a well-known mark.
51. The disputes between the parties essentially emanates from the
plaintiff’s grievance in respect of use of its registered well-known
trademark “HINDWARE” as a keyword. As per the plea raised by the
plaintiff, the use of its trademark as a keyword amounts to infringement of
its registered trademark. The same has resulted in diversion of internet
traffic from its website to that of its competitor.
52. As per the pleadings on record, somewhere in October, 2014,
plaintiff came to know that defendant no. 1 in CS(COMM) 591/2017 , was
advertising its mark GROHE on defendant no. 2 and 3’s platform,
www.google.com . It transpired that the defendant no. 1 had availed the
AdWords Programme run and managed by Google and had purchased the
plaintiff’s registered trademark “HINDWARE” and/or a combination of
words thereof, in a manner that when a user would search for “hindware
sanitaryware”, “hindware sanitary ware India”, or “hindware sanitary” on
Google’s search engine, the first result that appeared was the website of
defendant no. 1, www.grohe.com . The screenshots of the SERP on the
Google platform and the result suggesting Grohe sanitary systems showing
as a top result, are reproduced as under:
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53. Likewise, in CS(COMM) 592/2017 , as per the pleadings on record,
somewhere in early 2013, plaintiff came to know that defendant nos. 1 and
2 were advertising defendant no. 2’s mark ‘CERA’ on the Google’s
platform, www.google.com . It again transpired that defendant nos. 1 and 2
had availed the services of the AdWords Programme run and managed by
Google, and had purchased the plaintiff’s registered trademark
“HINDWARE” and/or a combination of words thereof as keyword(s), in a
manner that the first result that appeared when a consumer would search
for “hindware”, was of the website of defendant no. 2, www.cera-
india.com . The screenshot with regard to the same is reproduced as under:

Google’s AdWords Policy:
54. Before delving in this issue further, it is imperative to understand
Google’s AdWords Policy (now known as Google’s Ads Programme). The
AdWords Policy is essentially an advertising self-service platform
managed by Google, through which advertisers can create and display
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online advertisements with respect to their websites. The said
advertisements are displayed on the first page of the SERP.
55. The AdWords Policy of Google functions as a paid referencing
service. The Ads Programme enables any commercial entity by means of
reservation of one or more words as keywords, which could be any word,
to obtain an advertising link to its site when an internet user enters one or
more of the keywords into a search request.
56. The search results yielded by search engine when a user searches a
word, are primarily of two types:
i. Organic or Natural
ii. Inorganic or Sponsored
57. The inorganic or sponsored search results are labelled with a prefix
‘ad’ to distinguish the same from organic search results. The said
advertisement comprises of the AdHeading or AdTitle; URL or the website
address; and the AdDescription. The AdHeading and AdDescription are
collectively referred to as ‘AdText’ and are editable in nature, whereas, the
URL displays the website domain of the advertiser.
58. As brought forth before this Court, in order to avail the service of
the AdWords Policy, the advertiser, firstly, proceeds to ads.google.com to
sign into their account. Thereafter, the advertiser can choose the option to
create a new campaign for the advertisement it wishes to display on the
search engine. The advertiser has the option of setting an ‘average daily
budget’ for the campaign in the ‘Budget and Bidding’ section and
furthermore, choose specific targeting options like location, language etc.,
in the ‘Campaign Settings’ option.
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59. Thereafter, the advertiser chooses a set of keywords. Keywords are
words or phrases that are used by advertisers in their campaign to trigger
their advertisements. The keywords used by advertisers can be selected
with the help of assistance of the ‘Keyword Planner Tool’ provided by
Google. The said tool is a statistical research tool built into the Ads
Programme interface, which provides an integrated work flow to guide
users through the process of finding keywords for creating new ad groups
and/or campaigns.
60. A user, who wishes to choose appropriate keywords for an
advertisement, will have to type one or more descriptive words or phrases
to solicit keyword ideas on the Keyword Planner. Thereafter, the Keyword
Planner Tool will display, inter alia , certain keywords related to the words
entered by the advertiser, along with the volume of monthly searches made
on the same keyword and the additional keywords that could possibly be
considered for use by the advertiser.
61. In order to enable the advertisers to select appropriate AdWords, so
that the links to their sites are advertised in appropriate locations, search
engines themselves guide the advertisers in the selection of AdWords.
While doing so, search engines provide an unlimited choice to the
advertisers, to choose from millions of words. If the keyword selected by
the advertiser is not selected by anybody else, the search engine makes it
available to the advertiser at a fixed rate. However, if the keyword selected
by the advertiser is already in use by others, the advertisers who vie with
one another are asked to bid upon a basic price fixed by the search engine.
62. Though all the advertisers are allowed to use the same keyword as
their AdWords, the highest bidder is given the top slot in the list of
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sponsored links, subject to other factors. Therefore, in essence, an
advertiser is entitled to choose any number of keywords for advertising his
website on the sponsored links, but the slot allotted to him in the list of
sponsored links, depends, amongst other factors, upon the price offered by
him for the keyword, in comparison to the price offered by others for the
very same keyword.
63. Google conducts an auction of the keywords in real time. The
advertisers bid in advance by specifying the keywords for triggering the
display of their advertisement, and the maximum price they are willing to
pay if a user clicks on the said advertisement.
64. The advertisers do not pay when their advertisement appears on the
SERP, but only when a user clicks on the said advertisement to view the
website, referred to as ‘Pay-Per-Click’ (“PPC”). The algorithms used by
Google determine the advertisements and the order in which the sponsored
result appear on the SERP.
65. With regard to the Ads Programme of Google, previously known as
Google AdWords, the cross examination of D3W-1 in CS (COMM)
591/2017 and D4W-1 in CS (COMM) 592/2017 , i.e., Mr. Gavin Chariston,
appearing on behalf of Google, records as under:
“xxx xxx xxx

CS (COMM) 591/2017

...........

Q2. Is it correct that for the purpose of key words bid by GROHE, the
agreement was between GROHE and defendant no.2 but the
ADWORD programme was managed by defendant no.3?

A. Yes.



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It is correct that the normal Google research results are distinct from
ADWORD advertisement result and are not organic search results
i.e. advertisements are not organic search results.

xxx xxx xxx

Q4. As for example, whether a company named Samsung can bid for
key words like Nokia, Apple and Sony etc. for the purposes of their
advertisements for mobile phones online?

A. Yes.

Q5. Whether if a online search is made using word Nokia or Apple or
Sony, the ADWORD programme will show the advertisement of
Samsung?

A. Yes may be. But subject to other factors.

Q6. Whether Google LLC promotes that company/establishment
having trademarks buy key words of their competitors?

A. No.

It is correct that we do not take any prior consent or approval from
the owners of the trademark before auctioning their trademarks as
key words through our ADWORD programme. It is correct that
Google LLC does not share any revenue or compensate the owners
of the trademark after the successful bidding of such trademark by
some other persons.

Q7. Whether, as on today, key word HINDWARE is still available
with the ADWORD programme for bidding by other entities except
GROHE?

A. Yes

Q.8 Is it correct that even after 10.11.2014, this key word
HINDWARE was available continuously till date for bidding at
ADWORD programme of Google?

A. Yes.

At this Stage, witness is offered to use the computer of the court
(computer attached with the reader of the court) and asked to do the
following and thereafter answer the questions.

Q9. Can you type “HINDWARE Faucets” and search on Google
search engine?

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A. Yes

Witness typed “HINDWARE Faucets” on Google search engine and
results followed.

Q10. Is it correct that the search result is showing advertisement by
Kohler?

A. Yes.

The hard copy is taken by using print screen option. The hard copy
exhibited as Ex. D3W1/PX-1.

It is wrong to suggest that Google is violating the injunction order
dated 10.11.2014 despite the pendency of the contempt petition in the
connected case.

xxx xxx xxx

Q12. Whether word HINDWARE was available to be chosen for
successful bidding on ADWORD programme as key word?

A. Yes.

Q13. Whether Google had ever tried to search word HINDWARE in
any published dictionary around the world?

A. I do not know.

Google had not taken any permission or prior consent or approval
from plaintiff to put word HINDWARE as key word for ADWORD
programme.

xxx xxx xxx

Q16. Is there any difference between bidding price and “cost per
click”?

A. Yes. The bidding price is what the advertiser is willing to pay when
someone clicks on their advertisement. The cost per click is what the
advertiser actually pays when someone clicks on their advertisement.
We have a second price auction. The advertiser pays Rs. 1 more than
the second highest bid.

Q17. Is it correct that if the plaintiff were to bid for its own
trademark i.e. HINDWARE as a key word, its Ad-relevance, expected
click through rate and landing page experience would be higher as
compared to when GROHE bids for the key word HINDWARE
because it has otherwise no relation with trademark HINDWARE?

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A. Yes.

Q18. Is It also correct that in such a case where the ad-relevance,
expected click through rate and landing page experience of
defendant no. l is comparatively low, it would have to pay Google a
higher bidding amount (cost per click) as compared to the plaintiff?

A. Yes.

Q19. Is it correct that the bidding price (cost per click) is linked with
the quality score and the ad-rank of the advertisement?

A. I would not say necessarily the word “linked” but it is a factor
taken into consideration.

xxx xxx xxx

Q21. Is it correct that if a trademark owner bids for its trademark and
any other person bids for the same trademark, the ADWORD
programme earn more from the bidding from other person than if the
bidding is done by the trademark owner?

A. I cannot say since may factors are involved in pricing the bids. The
other factors are quality score, Advocate-relevance and landing page
experience for example if there is comparison of quality of products
between GROHE’s products and HINDWARE product’s on GROHE’s
website, it may also be a relevant factor.

xxx xxx xxx
Q26. What do you mean by "adwords policy as applicable to India"?

A. Even on that day it was a global policy. This phrase has been used
possibly to show that even it applies to India.

The policy whereby the prohibition of using trademark terms as key
words was lifted in the year 2009 in India.

xxx xxx xxx

Q28. Is it correct that post 2009, even, if the trademark owner i.e.
plaintiff were to complain to Google regarding use of its trademark
as a key word by a third party, Google would not take any action
thereupon?

A. Yes.

xxx xxx xxx

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Q30. What was the reason behind change of policy?

A. Google thought that it is justified as it is within the realm of law of
various countries, good for consumers and for advertisers since it
gives more choices available for users. Volunteered:

We were confident that the users would not be confused by
competitive key word bidding.


xxx xxx xxx”
(Emphasis Supplied)

66. Perusal of the aforesaid cross-examination on behalf of Google
establishes the following:
i. Google runs an AdWords Programme, pursuant to which, a user is
routed to the advertiser’s link/web page.
ii. The word “HINDWARE” was available to be chosen for successful
bidding on AdWords Programme as keyword.
iii. The witness of Google confirmed that even if a user would
specifically search for a particular product, for example, Nokia or
Sony, another company such as Samsung could purchase the
keywords Nokia or Sony in return for a fee earned by Google,
whereupon, instead of the organic result, i.e., websites of Nokia or
Sony, the user would be shown the advertisement/websites of
Samsung.
iv. The witness confirmed that despite passage of the injunction order
th
dated 10 November, 2014, the keyword HINDWARE was
available for bidding in the AdWords Programme, and in fact, on
searching ‘HINDWARE Faucets’ before this Court, the results
shown by Google was of ‘Kohler’.
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v. The witness confirmed that Google had not taken any permission or
prior consent from the plaintiff company to put its trademark
“HINDWARE” in its AdWords Programme.
vi. Google does not share any revenue or compensate the owners of the
trademark after the successful bidding of such trademark by some
other persons.
vii. Google’s witness confirmed that a trademark owner can bid for its
own trademark under the AdWords Programme.
viii. The witness confirmed that in terms of its AdWords Policy as
applicable to India, Google did not allow a trademark to be used as
a keyword till 2009 and the policy was changed as Google was
confident that users would not be confused by competitive keyword
bidding.
ix. The witness confirmed that post 2009, even if the trademark owner,
i.e., plaintiff, were to complain to Google regarding use of its
trademark as a keyword by a third party, Google would not take any
action thereupon.
Trademark of the plaintiff, i.e., “HINDWARE” is a coined and
distinctive mark:
67. In this context it is to be noted that the trademark “HINDWARE” is
a registered trademark of the plaintiff since the year 1991 and has been
used exclusively, extensively and continuously since then by the plaintiff
in respect of various sanitaryware products and bathroom accessories.
68. “HINDWARE” is a coined word and has no dictionary meaning.
The plaintiff company has the following trademark registration in its
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favour pertaining to its trademark HINDWARE, as brought forth in the
Evidence Affidavit of PW-1 , Exhibit PW-1/A :





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69. Submission of the plaintiff as brought forth in the Evidence
Affidavit of its witness, Exhibit PW-1/A , with regard to extensive use of
the trademark “HINDWARE”, the sales figures of its products with the
trademark “HINDWARE” and the amount spent on advertisement and
promotion of the mark “HINDWARE”, is reproduced as under:
“xxx xxx xxx

8. I say that the Plaintiff company enjoys a market share of 40% in
the organized sector of the sanitary-ware industry. I say that the
Plaintiff company has 18 service centres across India, 25
HINDWARE boutiques and more than 450 HINDWARE shops. I
say that while the Plaintiff predominantly caters to the Indian market,
in this era of globalization, it also has a Building Products Division
and a Container Glass Division which have expanded their horizons
to cater to the international market as well. I say that the Plaintiff
exports its products to various countries in Europe, Africa and the
Middle East.

9. I say that the Plaintiff is recognized among the top 300 companies
in India, while rated amongst the best 100 small and medium sized
companies in the world by the Forbes Magazine. I say further that
the Plaintiff has more than 1,235 institutional partners including
respectable business houses such as DLF, Taj Hotels, GMR Group,
Unitech, ITC Hotels, PepsiCo, Coca Cola, Dr. Reddy's Laboratories,
Hindustan Unilever, Pfizer, Dabur and Nestle to name a few.

10. I say that the mark/brand HINDWARE is the flagship brand of the
Plaintiff, offering the widest range of sanitaryware in India. I say that
the brand/ trademark HINDWARE is a registered trademark of the
Plaintiff since year 1991, and has been used exclusively, extensively
and continuously since then by the Plaintiff in respect of Sinks, wash
basins, bathtubs, bidets, water closets and other sanitary-ware
products including bathroom accessories.

11. I say that the popularity of the product range sold under the
trademark HINDWARE is evident from the growing sales of the
products. I say that true copies of the Annual Report of Plaintiff
company for 2011-2012, the Original Certificates from Chartered
Accountants stating the sales and advertisement figures pertaining to
the Plaintiff from 1990-1991 and 2010-2011 along with copies of some
sample sale invoices from the years 1991-2008 have already been
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filed in the present proceedings and I crave leave to produce the
Annual Report of Plaintiff company for 2011-2012, Original
Certificates from Chartered Accountants stating the sales and
advertisement figures pertaining to the Plaintiff from 1990-1991 and
2010-2011 along with the sample sale invoices from the years 1991-
2008 to exhibit the same as Ex PW 1/6, Ex PW 1/7 [Colly] and Ex
PW 1/8 [Colly] respectively.

12. I say that the total sales under the mark HINDWARE for the
year 2011-12 are in excess of Rs. 500 Crores. I say that the following
are the sales figures of the Plaintiff company pertaining to the
trademark HINDWARE:

I say that the Plaintiff has also spent considerable amounts of
money on advertisement and promotion of the mark HINDWARE
and related marks and also the website www.hindwarehomes.com. I
say that true copies of the various advertising brochures of the
Plaintiff company, true copies of advertisements of the Plaintiff's
products in various magazines along with true copies of printouts
from www.hindwarehomes.com have already been filed in the present
proceedings and I crave leave to produce the various advertising
brochures of the Plaintiff company, the advertisements of the
Plaintiff's products in various magazines along with the printout from
www.hindwarehomes.com to exhibit the same as Ex PW 1/9 [Colly],
Ex PW 1/10 [Colly] and Ex PW 1/11 respectively.

13. I say that the total expenditure on advertising and marketing for
the mark HINDWARE for the year 2011-12 is in excess of Rs. 50
crore. I say that following are the advertisement figures of the
Plaintiff company pertaining to the trademark HINDWARE and its
derivative marks:
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xxx xxx xxx

16. I say that the Plaintiff also owns various registered designs for its
range of sanitary products. I say that the Plaintiff being one of the
oldest companies in India, manufacturing and selling sanitary-wares,
tiles and various other building and construction related material,
enjoys unparalleled reputation and goodwill. I say that the Plaintiff
company is duly ISO and OHSAS certified as well, implying effective
quality management and environment systems. I say that true copies of
the ISO and OHSAS certification of the Plaintiff Company dated
03.05.2012 have already been filed in the present proceedings and I
crave leave to exhibit the same as Ex PW 1/13 [Colly] .


xxx xxx xxx”
(Emphasis Supplied)


70. Perusal of the aforesaid establishes that the trademark of the
plaintiff “HINDWARE” has acquired distinctiveness in the trade as a
result of its long, extensive and continuous use, since as far back as 1991.
The plaintiff has acquired enormous goodwill and reputation in trademark
“HINDWARE”, which is reflected in the huge turnover, as above. Since
the trademark “HINDWARE” is a coined word and has no dictionary
meaning, the said mark relates to the trade of the plaintiff and customers
identify the same as related only to the plaintiff and no one else. In this
regard reference is made to the judgement passed by the Division Bench
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of this Court in the case of Marico Limited Versus Agro Tech Foods
14
Limited , wherein it was held as follows:
“xxx xxx xxx
15. The word ‘distinctive’ is not directly defined in the Act. However
meaning of distinctive is indicated in the definitions of ‘trade mark’
[Section 2(zb)] and ‘well known trade mark’ [Section 2(zg)]. The
word has been explained in a plethora of judgments. Distinctive has
been explained to mean such use of the trade mark with respect to
the goods of a person that the public will immediately and
unmistakably co-relate the mark with the source or a particular
manufacturer/owner thereof. The real issue which however arises is
what should be the meaning of the expression ‘distinctiveness’ in the
situation when the trade mark is a word mark of descriptive nature.
When a trade mark, which is a word mark, is arbitrarily adapted and
is such having no co-relation to the goods in question, then in such
a case distinctiveness is achieved by normal and ordinary use of the
trade mark with respect to the goods and it has been repeatedly held
that such trade mark is entitled to the highest degree of protection.
However this is not and cannot/should not be so for a trade mark
which is a descriptive word mark. Some colour has to be taken for the
word ‘distinctive’ as found in the proviso to Section 9 from the
expression ‘well known trade mark’ which follows the distinctiveness
aspect as found in the said proviso. Courts should ordinarily lean
against holding distinctiveness of a descriptive trade mark unless the
user of such trade mark is over such a long period of time of many
many years that even a descriptive word mark is unmistakably and
only and only relatable to one and only source i.e. the same has
acquired a secondary meaning. A case in point is the use of ‘Glucon-
D’ for 60 years in the recent judgment in the case of Heinz
Italia v. Dabur India Ltd., (2007) 6 SCC 1 A period of 60 years is
indeed a long period of time and thus distinctiveness of the descriptive
word mark used as a trade mark was accepted, albeit in a tweaked
form of the normal descriptive word ‘Glucose’. Therefore, when the
descriptive trade mark is used only by one person undisturbed for a
very long period of time, without anyone else attempting to use the
trade mark during this long period time, a case can be established of a
descriptive word having achieved distinctiveness and a secondary
meaning.

xxx xxx xxx”
(Emphasis Supplied)


14
2010 SCC OnLine Del 3806
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71. This Court also takes note of the fact that the plaintiff company has
also been given several awards and recognitions by various publications
on international and national level, one of the awards being, “India’s most
powerful brand chosen by consumers (2011)” by Indian Institute of
Planning and Management (“IIPM”). This clearly indicates that the mark
of the plaintiff, “HINDWARE” is distinctively associated with the goods
of the plaintiff company. The summary of the said awards as given by the
plaintiff in its Annual Report is as under:


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72. This Court also takes note of the fact that the trademark of the
plaintiff “HINDWARE” has been recognised as a well-known mark by this
st
Court in the order dated 21 April, 2017 in CS(OS) 2736/2014 , titled as
“HSIL Limited Versus Kripton Ceramics Pvt. Ltd. & Ors.” , in the
following manner:
“1 The present suit has been filed by the plaintiff against the
defendants for permanent injunction restraining infringement of
trademarks, delivery up, rendition of accounts of profits as also
damages.

2 The plaintiff HSIL Limited, formerly known as Hindustan
Twyfords Ltd. is a company established in 1960, incorporated under
the provisions of the Companies Act, 1956, and is a leading
manufacturer and seller of sanitary ware products, kitchen
appliances, tiles etc. under the trademark “HINDWARE”, which is a
registered trademark of the plaintiff since the year 1993, as well other
supplementary marks/logos/labels such as H-VITREOUS
HINDWARE, HINDWARE ITALIAN COLLECTION, HSIL etc. The
history of HINDWARE has been detailed in the plaint establishing its
business reputation and goodwill not only in any single class of goods
but across various classes due to wide range of products. The plaintiff
also owns the domain name www.hindwarehomes.com which provides
information about the company and also offers its entire range of
products.

3 Defendant No.1 is the manufacturer of tiles under the trademark
“TLINDWARE” which is registered as a label mark. Defendant No.2 is
the director of Defendant No.1, Defendant No.3 has designed the
infringing trademark and gotten it registered in his own name on behalf
of Defendant No. 1 and Defendant No.4 is the shop from which the
infringing products are sold.

4 In June, 2014 the plaintiff received information that the
defendants were manufacturing and selling tiles prominently displaying
the plaintiff’s trademark HINDWARE. Upon investigating further, the
plaintiff discovered that the defendants were not only using a mark
deceptively similar to the plaintiff’s registered trademark HINDWARE
but were also copying the font and writing style. Plaintiff had requested
Defendant No. 3 to visit the office of the Plaintiff in Gujarat where he
disclosed that though the defendants sell under the mark TLINDWARE,
the manner in which the alphabets T and L are written, present a visual
impression that the two alphabets combined form the alphabet H (for
HINDWARE) so as to cause confusion in the minds of the customers
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without being liable in any manner, and also assured the plaintiff that he
would dispose of the infringing cartons, printing plates and give up the
registration for TLINDWARE. Despite the assurances the defendants
continued with the infringement and chose to ignore the reminder emails
sent to them by the plaintiff.

5 Present suit has accordingly been filed praying for a relief of
permanent injunction and seeking a restraint on the infringement of the
trademark of the plaintiff. Restraint on passing off, delivery up of goods
and damages to the tune of Rs.21,00,000/- have also been prayed for.

6 In the course of proceedings of the suit, on 09.09.2014 an ex
parte interim injunction was granted in favour of the plaintiff and
against the defendants restraining them from using the trademark
HINDWARE or any other mark which is identical to or similar to the
plaintiff’s mark. The ex-parte interim injunction was then made absolute
on 27.01.2017.

7 Summons of the suit were issued to the defendants who in spite
of the service did not appear. They were proceeded ex parte on
16.01.2015.

8 Ex parte evidence by way of affidavit of PW-1 (Vice President-IR
& Legal of the plaintiff) and PW-2 (senior officer-IT of the plaintiff) has
been filed. PW-1 has reiterated all the averments made in the plaint and
has proved various documents delineated as Ex.PW1/1 to Ex.PW-1/25
(except Ex.PW1/19). PW-2 has also reiterated the averments made in
plaint.

9 The plaintiff has established that the mark HINDWARE is a
well known mark. He has proved his case. In view of the testimony of
the witnesses of the plaintiff i.e. both PW-1 and PW-2 as also
documentary evidence adduced and proved in the court, the plaintiff is
entitled to a decree of permanent injunction. It is clear that the
defendants have copied the trademark and logo of the plaintiff’s in all
respects. This adoption of the trademark of the plaintiff is fraudulent
and is done with a malafide intention and has caused huge losses to the
plaintiff not only in monetary terms but even in terms of loss to its
reputation and goodwill. Accordingly, the suit of the plaintiff is decreed
and by way of the permanent injunction, the defendants, directors,
officers, servants and agents and all others acting for and on their
behalf are restrained from using the plaintiff’s trademark HINDWARE
or any other trademark of the plaintiff, on its products or in any manner
which is deceptively similar with the plaintiff’s trademarks amounting to
infringement/passing off the plaintiff’s registered trademarks as also
from misrepresenting or holding out to be connected or related to the
plaintiff in any manner whatsoever.

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10 The defendants are also directed to destroy all the printed and
electronic material, invoices, letter heads, visiting cards, products,
product packaging, carton, cardboard boxes, printing plates or any
other material bearing the plaintiff’s trademark HINDWARE.


11 The plaintiff has also claimed damages. In the affidavit by way
of evidence it has been reiterated that the use of the infringing
trademark by the defendants has caused huge losses to the plaintiff not
only in monetary terms, but also to the goodwill and reputation of the
plaintiff. The plaintiff has also made out a case for entitlement of
damages and is awarded damages quantified at Rs.21,00,000/-. Cost of
the suit also be granted in favour of the plaintiff. Decree sheet be drawn.
File be consigned to record room.”
(Emphasis Supplied)

73. Thus, it is evident that the trademark of the plaintiff is a distinct
mark on account of its extensive and continuous use by the plaintiff, since
long. Further, the plaintiff’s trademark being a coined word is entitled to a
greater amount of protection from infringement. In this regard, reference is
made to the judgement of the Supreme Court in the case of Pernod Ricard
15
India Private Limited and Another Versus Karanveer Singh Chhabra ,
wherein the Supreme Court held that the more distinctive a mark, whether
inherently or through acquired reputation, the stronger its position in an
action for infringement or passing off, and the higher the degree of
protection it commands. Thus, it was held as follows:
“xxx xxx xxx

31.4. The strength of a trademark lies in its inherent distinctiveness
or the distinctiveness acquired through use. Invented or coined
marks - such as Kodak or Solio - are inherently distinctive and
command the highest degree of protection. These marks immediately
signify the commercial origin of the goods or services. In contrast,
descriptive marks - such as Air India, Mother Dairy, HMT, Windows,
Doordarshan, LIC, and SBI - are not inherently distinctive and must
acquire secondary meaning in the minds of the public to qualify for
protection. That is, the public must come to associate the mark with
a particular source. Similarly, geographical terms like Simla or

15
2025 SCC OnLine SC 1701
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Liverpool, or generic trade terms, are generally not registrable
unless they have acquired distinctiveness through long and exclusive
use. The more distinctive a mark - whether inherently or through
acquired reputation - the stronger its position in infringement or
passing off actions.

xxx xxx xxx”
(Emphasis Supplied)

74. Thus, it is evident that the trademark of the plaintiff is a distinct
mark on account of its extensive and continuous use by the plaintiff since
long. Further, the plaintiff’s trademark being a coined word being
inherently distinctive is entitled to greater amount of protection from
infringement.
Functions of a Trade Mark:
75. A trade mark is a mark capable of distinguishing the goods and
services of one person from those of others. The underlying principle
behind trademark protection is to ensure that the goods or services of one
enterprise can be distinguished from those of others. This serves the dual
purpose of protecting the consumers from confusion, and protecting the
goodwill and reputation of the trade mark owner from being used by its
competitors.
76. Thus, the primary function of trademark is to act as a source
identifier, i.e., enable the consumer to identify the source of goods or
services, and distinguish them from those of others. Any use of a mark,
which is likely to confuse or deceive the consumer, or create a likelihood
of an association or link between certain goods/services and the
goods/services of the proprietor of the trade mark, are actionable.
77. Additionally, trademarks also have an investment function, which
seeks to protect the investment made by the proprietor in building
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reputation and goodwill of the trademark. Thus, even in the absence of a
likelihood of confusion, any use of a trademark which leads to dilution,
either by blurring or by tarnishing, or which is detrimental to the
reputation of the trademark is actionable. Trademarks have also been
recognised to have an advertising function, which seeks to prevent any
advertising of the trademark if it amounts to unfair advantage and is
contrary to honest practices in industry, or harms the distinctive character
or reputation of the trademark. These functions may overlap in some
scenarios.
78. In this regard, it may be apposite to refer to the decision of the
Division Bench in the case of Google LLC Versus DRS Logistics (P)
16
Limited and Others , wherein, the functions of trademark have been
discussed in the following manner:
“xxx xxx xxx

136. It is essential to bear in mind that the protection afforded in
respect of a trade mark is both to the public as well as the proprietor
of the trade mark. The primary function of a trade mark is to serve
as a source identifier of the goods and services. It is necessary for
protection of the public that when they purchase goods and services
associated with the trade mark, they are not deceived in any manner
in accepting goods and services from a source other than that
associated with the trade mark. Any use of a mark, which is likely to
confuse or deceive the user is impermissible and is actionable. In
addition to the primary function of serving as a source identifier, the
trade mark also has an investment function, that is, to preserve the
value of investment of the proprietor in popularising the trade mark
and the attendant goodwill. Extended protection is also afforded to
this function of the trade mark, to ensure that the value of the trade
mark is not diluted or compromised, either by blurring or by
tarnishment, by use of an identical or deceptively similar mark even
though there is no likelihood of any confusion.

xxx xxx xxx”
(Emphasis Supplied)

16
2023 SCC OnLine Del 4809
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Use of the Trademark amounts to Use under the Trade Marks Act:
79. Google has contended that keywords act as a backend trigger for
displaying the advertisements in response to the search query entered by a
user, and such keywords are only within the knowledge of the advertiser
who has provided them. Since, users can neither see, or otherwise perceive
the keywords provided by the advertiser, such use of trademarks as
keywords, being imperceptible or invisible to consumers, cannot be said to
amount to ‘use’ under the Trade Marks Act.
80. Thus, the first question that bears consideration by this Court would
be as to whether the use of trademark as keyword for display of
advertisements in respect of goods or services amounts to “use” of the
mark.
81. As to what constitutes use of a mark, Section 2(2)(b) and (c) of the
Trade Marks Act, stipulates as under:
“xxx xxx xxx

(2) In this Act, unless the context otherwise requires, any reference—

xxx xxx xxx

(b) to the use of a mark shall be construed as a reference to the use
of printed or other visual representation of the mark;

(c) to the use of a mark ,—

(i) in relation to goods, shall be construed as a reference to the
use of the mark upon, or in any physical or in any other relation
whatsoever, to such goods;

(ii) in relation to services, shall be construed as a reference to
the use of the mark as or as part of any statement about the
availability, provision or performance of such services;

xxx xxx xxx”
(Emphasis Supplied)

82. Perusal of Section 2(2)(c) of the Trade Marks Act shows that use of
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the mark in relation to goods shall be construed as not only use of the
mark upon or in any physical form, but in any other relation whatsoever.
The use of the words “in any other relation whatsoever” must be
interpreted widely and would include even invisible use of the mark. Thus,
use of a trademark as a keyword, even though not visible to the end user,
would amount to use of the mark.
83. It would also be relevant to refer to Section 29(6) of the Trade
Marks Act, which lays down as to what amounts to use of a registered
mark for the purpose of Section 29 of the Trade Marks Act, in the
following manner:
“xxx xxx xxx

(6) For the purposes of this section, a person uses a registered mark ,
if, in particular, he—

(a) affixes it to goods or the packaging thereof;

(b) offers or exposes goods for sale, puts them on the market, or
stocks them for those purposes under the registered trade mark, or
offers or supplies services under the registered trade mark;

(c) imports or exports goods under the mark; or

(d) uses the registered trade mark on business papers or in
advertising.

xxx xxx xxx”
(Emphasis Supplied)

84. Section 29(6)(d) of the Trade Marks Act elucidates that use of a
registered trademark in advertising is use of a registered trademark. Thus,
use of trademark as a keyword for display of advertisements in respect of
goods or services clearly amounts to use of the trademark ‘in advertising’
within the meaning of Section 29(6)(d) of the Trade Marks Act.
85. This Court does not accept the contention of Google that the words
“in advertising” as appearing under Section 29(6)(d) of Trade Marks Act
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should be read as a noun, and not a verb. The language used by the
legislature in Section 29(6)(d) is “in advertising” and not “in an
advertisement”. It is a settled principle of law that effect must be given to
the plain meaning of words used by the legislature. Thus, when the
legislature in its wisdom has used the word “in advertising”, it would
naturally encompass all uses of a trademark in the process of advertising.
Thus, even where a registered trademark does not appear or is not visible
in the advertisement in question, if the trademark has been used in
advertising, such as in the present case by use as a keyword, the same
would amount to use of the trademark. Since, in the present case, the
trademark “HINDWARE” is used as a keyword to trigger display of
advertisements of goods or services, it would in the plain sense, be use of
the mark in advertising, and amount to use of the trademark under the
Trade Marks Act.
86. A reference may be made to the judgement of the Division Bench of
this Court in the case of Google LLC Versus DRS Logistics (P) Limited
17
and Others , wherein, it has been held that use of trademark as keyword
amounts to use of marks for the purpose of Section 29 of the Trade Marks
Act, in the following manner:
“xxx xxx xxx

82. Section 29 of the TM Act uses the term “mark” as well as “trade
mark”. These terms are defined under sub-clauses (m) and (zb) of
Section 2(1) of the TM Act respectively. The said clauses are set out
below:

“2. (1)(m) ‘mark’ includes a device, brand, heading, label, ticket,
name, signature, word, letter, numeral, shape of goods,
packaging or combination of colours or any combination thereof.
∗∗∗

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(zb) ‘trade mark’ means a mark capable of being represented
graphically and which is capable of distinguishing the goods or
services of one person from those of others and may include
shape of goods, their packaging and combination of colours; and

(i) in relation to Chapter XII (other than Section 107), a
registered trade mark or a mark used in relation to goods or
services for the purpose of indicating or so as to indicate a
connection in the course of trade between the goods or services,
as the case may be, and some person having the right as
proprietor to use the mark; and

(ii) in relation to other provisions of this Act, a mark used or
proposed to be used in relation to goods or services for the
purpose of indicating or so as to indicate a connection in the
course of trade between the goods or services, as the case may
be, and some person having the right, either as proprietor or by
way of permitted user, to use the mark whether with or without
any indication of the identity of that person, and includes a
certification trade mark or collective mark;”

83. Clauses (b) and (c) of Section 2(2) of the TM Act provides for the
meaning to be ascribed to the expression, “use of a mark”. The said
provisions are set out below:

“(2) In this Act, unless the context otherwise requires, any
reference—
∗∗∗
(b) to the use of a mark shall be construed as a reference to the
use of printed or other visual representation of the mark;

(c) to the use of a mark,—

(i) in relation to goods, shall be construed as a reference to
the use of the mark upon , or in any physical or in any other
relation whatsoever, to such goods;

(ii) in relation to services, shall be construed as a reference
to the use of the mark as or as part of any statement about the
availability, provision or performance of such services;”

84. Section 2(2)(c)(i) of the TM Act is couched in wide terms. Any
reference to the use of a mark in relation to goods is not only limited
to use in any physical form but also “in other relation whatsoever”
to such goods. The words “in relation to” have been interpreted in
wide terms. In Hardie Trading Ltd. v. Addisons Paint & Chemicals
Ltd. [Hardie Trading Ltd. v. Addisons Paint & Chemicals Ltd., (2003)
11 SCC 92] , the Supreme Court considered the scope of Section
2(2)(b) of the TM Act [which is now Section 2(2)(c)(i) of the TM Act]
and interpreted the words “in other relation whatsoever” in wide
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terms. The court further observed that use of the words “in” and
“whatsoever” indicated that the expression “other relation” was of a
wide amplitude. The relevant extract of the said decision is as under:
(SCC pp. 108-109, paras 41, 42 and 45)

“41. The question therefore is — is the word ‘use’ in Section 46(1)
so limited? The phrase used in Section 46 is ‘bona fide use thereof
in relation to those goods’. The phrase has been defined in Section
2(2)(b) of the Act as:

‘2. (2)(b) to the use of a mark in relation to goods shall be
construed as a reference to the use of the mark upon, or in any
physical or in any other relation whatsoever, to such goods.’

(emphasis supplied)

42. This shows that the use may be other than physical. It may be in
any other relation to the goods. Given this statutory meaning, we
see no reason to limit the user to use on the goods or to sale of
goods bearing the trade mark.
∗∗∗
45. In Section 2(2)(b) of the Act, we have the additional words
‘any’ and ‘whatsoever’ qualifying the words ‘other relation’ giving
the words a much wider meaning. Reading this definition into
Section 46(1) it is clear that the word ‘use’ in Section 46(1) may
encompass actions other than actual sale.”

85. We are unable to accept that the use of a trade mark must
necessarily be limited to use in a visual form on the goods. The
words “in any other relation” to goods would also include use in
relation to the goods, in any form whatsoever.

86. Section 2(2)(c)(ii) of the TM Act requires the reference to the use
of the mark as or as a part of any statement about availability,
provision or performance of such services. The expression “or in
any other relation whatsoever” is not used under Section 2(2)(c)(ii)
of the TM Act. It is difficult to accept that the use of a mark in
relation to services must be construed in a narrower sense than use
of the mark in respect of goods. However, the same would depend on
the context in which the expression “use of the mark” is used.

87. Section 2(2) of the TM Act serves as an aid to interpret the words
and terms as used in the TM Act. However, the same is by no means
exhaustive. The expression “use of a mark” is used in the TM Act in
several sections and in the context of various aspects including
removal of the trade mark on account of abandonment or non-use,
and for lack of any bona fide intention to use the mark. Thus, the
question whether a reference to the expression “use of a trade
mark” is to be understood as instructed by Section 2(2)(b) or Section
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2(2)(c) of the TM Act would depend on the context in which the said
expression is used.

88. Section 29(6) of the TM Act expressly lists out certain actions,
which would amount to use of a registered mark for the purposes of
Section 29 of the TM Act. Clearly, the words of Section 2(2) of the
TM Act do not control the width of Section 29(6) of the TM Act. Thus,
if any action falls within the scope of Section 29(6) of the TM Act, the
same would necessarily have to be construed as use of the mark, for
ascertaining whether the trade mark is infringed in terms of Section
29 of the TM Act.

89. We concur with the view that the words “unless the context
otherwise requires” in the opening sentence of Section 2(2) of the
TM Act, limits the applicability of Section 2(2) of the TM Act to
where it is contextually relevant.

90. Indisputably, the Ads programme is Google's commercial venture
to monetise the use of the search engine for advertising by displaying
the sponsored links of various advertisers, who seek to display their
advertisements on the SERP pursuant to search queries initiated by an
internet user. The use of a trade mark as keywords for display of
advertisements in respect of goods or services clearly amounts to use
of the trade mark in advertising within the meaning of Section 29(6)
of the TM Act.

91. The expression “in advertising” as used in Section 29(6)(d) of
the TM Act is not synonymous to the expression “in an
advertisement”. It is not necessary that the registered trade mark
physically appears in an advertisement for the same to be used “in
advertising”. The use of a trade mark as a keyword to trigger display
of an advertisement of goods or services would, in plain sense, be
use of the mark in advertising.


xxx xxx xxx”
(Emphasis Supplied)


87. Perusal of the aforesaid decision shows that Section 2(1)(zb) of
Trade Marks Act defines a trademark, while Section 2(2)(c)(i) of Trade
Marks Act defines use of a mark to include reference to the use of the
mark upon, or in any physical or in any other relation whatsoever, to such
goods. Thus, the definition of the use of a mark under the Trade Marks
Act under Section 2(2)(c)(i), is couched in very wide terms. Any reference
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to the use of the mark is not only limited to use in any physical form, but
also “in other relation whatsoever” to such goods. Hence, use of a
trademark would necessarily include use in relation to goods, in any form
whatsoever. Furthermore, the use of a trademark as keywords for display
of advertisements in respect of goods or services clearly amounts to use of
the trademark in advertising within the meaning of Section 29(6) of the
Trade Marks Act. As noted hereinabove, the expression ‘in advertising’,
as used in Section 29(6)(d) of the Trade Marks Act, is not synonymous to
the expression, ‘in an advertisement’. It is not necessary that the registered
trademark physically appears in an advertisement for the same to be used
‘in advertising’. The use of a trademark as a keyword to trigger display of
an advertisement of goods or services would be use of the mark ‘in
advertising’.
88. In the case of DRS Logistics (P) Ltd. and Another Versus
18
GOOGLE India Pvt. Ltd. and Others , the learned Single Judge has
further held that keywords are comparable with meta-tags, as the end
result from use of meta-tags and keywords is not different. It was held that
no doubt meta-tags and keywords may be conceptually different, however,
both are used to show relevancy and appear on the top of the search
engine result page, whether in organic or sponsored result. The use of
meta-tags within codes and keywords with respect to the sponsored search
produces a desired result which is on the basis of Google’s algorithm. It
was held in categorical terms that invisible use of trademark to divert the
traffic from proprietors’ website to the advertisers’ website shall amount
to use of the mark for the purpose of Section 29, which includes Section
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29(6) and 29(8) of the Trade Marks Act, related to advertising. The
relevant paragraphs of the aforesaid judgment are reproduced as under:
“xxx xxx xxx

82. Mr. Lall is right in saying that Sections 2(2)(b) and 2(2)(c) have
to be read in addition to Section 29(6), 29(7), 29(8) and 29(9).
Having said that a perusal of Section 29(9) makes it clear that an
infringement of a trademark can be by way of spoken use which is
different from printed or visual representations of the mark. That is
invisible use of the mark can also infringe a trademark.

83. This I say in view of the Judgment of this Court in the case
of Hamdard National Foundation v. Hussain Dalal, (2013) 202 DLT
291, wherein the Court while considering the suit for infringement,
passing off and disparagement held that on a reading of Section 29 (9)
it is clear that the said section provides that it is an infringement of
the trademark by way of spoken use of the words which are contained
in the trademark and the visual representation thereof. So, it follows,
what is infringement, is not merely visual representation of the
product in bad light under the provision of Section 29(9) but it is
infringement of the trademark if the same is caused by way of spoken
use of the words and the visual representation of the said words.
Furthermore, a Division Bench of this Court in the case of Kapil
Wadhwa v. Samsung Electronics Co. Ltd., (2012) 194 DLT 23 has
found usage of a trademark in the source code i.e., through meta-
tagging even though invisible to the end-user/consumer to be illegal.
Albeit the appellant therein sold imported goods manufactured by
the respondent therein although without the consent of the latter.

84. Having said that, the question is whether the “invisible use” of a
mark, as contended by Mr. Sethi shall not amount to “use” within
meaning of Sections 2(2)(b) and 2(2)(c) of the TM Act as it is not a
case which falls within the meaning of Section 29. This issue is no
more res integra, at least in view of the Judgment in the case
of Amway India Enterprises Pvt. Ltd. v. 1MG Technologies Pvt.
Ltd., (2019) 260 DLT 690, wherein a Coordinate Bench of this court
while considering the use of the Mark “Amway” by third party e-
commerce platforms, for promoting their own sales, has held the use
of a mark in meta-tags or in advertising without the consent of the
proprietor as a violation of trademark rights of the owner. In fact,
the Court also held that Section 29 (8) also makes it clear that if any
advertising of a mark takes unfair advantage of the mark or is

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detrimental to its distinctive character even without sale taking place
there is an infringement.

85. On similar lines, is the Judgment of the Bombay High Court
in People Interactive (I) Pvt. Ltd. (supra) wherein the Court
observed that the defendant No. 1 was using the plaintiffs
proprietary mark shaadi.com and its domain
name www.shaadi.com as part of meta-tags in the first defendant's
website, which was held by the Court to be an attempt to
misappropriate the plaintiffs mark and hijack the internet traffic
from the plaintiffs site by a thoroughly dishonest and malafide use
of plaintiff s mark and name in the meta-tags of his own rival
website. Paragraph 14 of the Judgment is reproduced as under:

“14. I believe the Plaintiffs have made out not just a strong, but an
overwhelming prima facie case. Dishonesty is writ large on the
st
actions of the 1 Defendant. He has used the Plaintiffs'
mark shaadi.com as a suffix to another expression. He has
attempted to misappropriate the Plaintiffs' mark. He has made false
claims regarding the extent and size of his service. He has, plainly,
hijacked Internet traffic from the Plaintiffs' site by a thoroughly
dishonest and mala fide use of the Plaintiffs' mark and name in
the meta tags of his own rival website. The distinctive character of
the Plaintiffs' mark is thus diluted and compromised by the
st
actions of the Defendant. The 1 Defendant's action is nothing
but online piracy. It cannot be permitted to continue.”

86. Having noted the above Judgments, it is clear that the use of the
mark as meta-tags was held to be infringement of trademark. It
follows, that invisible use of trademark to divert the traffic from
proprietors' website to the advertisers'/infringers' website shall
amount to use of mark for the purpose of Section 29, which includes
Section 29 (6) and 29(8), related to advertising.

87. It is the submission of Mr. Sethi that there is a difference between
the meta-tags and keywords, inasmuch as meta-tags, which are words
inserted in the HTML code of the website; unlike keywords which are
only a component of the AdWord Program of Google. This submission
of Mr. Sethi is denied by Mr. Lall by contending keywords are
commercial meta-tags used in the AdWord Program of Google on
payment of charges on a pay-per-click basis. The concept of meta-
tags and keywords can be understood in the following manner which
I have culled out from the judgments given by various High Courts
of this country and also pleadings of the defendant Nos. 1 and 3
which I reproduce below :

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88. It must be stated here that the working of the meta-tags and also
the keywords, as contended by Mr. Sethi is governed through the use
of algorithms. The use of meta-tags within codes and keywords with
respect to the sponsored search produces a desired result which is on
the basis of Google's algorithm. According to the Oxford Reference
website, algorithm has been defined as, a “documented series of steps
which leads to the transformation of some data. For example, in order
to calculate the sum of a series of numbers a possible algorithm would
involve repeatedly adding the numbers to be summed to a running
total. Computer programs are a manifestation of algorithms which
allow them to be executed very quickly”. Whereas the Collins online
dictionary defines algorithm as, “a series of mathematical steps,
especially in a computer program, which will give you the answer to a
particular kind of problem or question”.

89. It is contended by Mr. Sethi, Google's use of its
advertising/sponsored result algorithm is different from that of the
algorithm involved in producing organic search result through use of
meta-tags. It is the case of Mr. Sethi that it is the use of Google's
algorithm in the AdWord program which triggers a sponsored result
i.e., the advertisements, which is different from the use of meta-tags,
which produces Google's organic result. He stated that the sponsored
result is triggered, based on many parameters, wherein each ad is
given a quality score which is an aggregate of many factors such as
relevancy of ad to search query, landing page quality, number of ad
extensions, past history of the advertiser, geographical relevance of
Ads to the webpage user; which goes to show that the AdWords
Program is not driven by monetary consideration alone. No doubt,
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that meta-tags and keywords may be conceptually different however,
both are used to show relevancy and appear on the top of the search
engine result page, whether in organic or sponsored result. The
question now is whether the use of mark as a keyword, results in
diversion of traffic from the website of the original proprietor to that
of the advertiser, this aspect has not been disputed/contested by
Google, nor it has been argued that the end result from use of meta-
tags and keywords is different; inasmuch as both are instrumental
for a search result (whether organic or sponsored) to appear on the
top of the search engine result page, except that sponsored links to
the advertiser's web page is marked with the symbol
Ad
denoting which is followed by the URL, displayed in the following
Ad. https://www
manner : .

90. I must also state that it is Google's policy that it will only
investigate the Ad content and not the keywords, the former includes
the ad text and ad title but not the keywords. In order to assess the
quality score, Google also sees the quality of the landing page which
is primarily the website of the advertiser which may or may not
have/display the infringed trademark. In other words, it is not the case
of Google that as keywords are not visible to a consumer the use of
same shall not amount to an infringement of trademark. However,
under the AdWords Program they also see the landing page i.e.,
website of the advertiser, which in a given case shall have the
infringing trademark, which is also used as a keyword, in such a
scenario, Google cannot absolve themselves from the liability of
ensuring that the keyword is not an infringement of trademark.

91. It is important to note, that had the AdWords Program of Google
not existed, the only option available to the infringer/prospective
advertiser in order to achieve the same result would have been to
change their meta-tags (source coding) which has already been held
to be “use” of trademark and as such infringement. This aspect also
highlights the fact that the same result is sought to be achieved
through different means .

xxx xxx xxx”
(Emphasis Supplied)

89. The aforesaid findings by the learned Single Judge were upheld by
the Division Bench of this Court in the case of Google LLC Versus DRS
19
Logistics (P) Limited and Others , in the following manner:

19
2023 SCC OnLine Del 4809
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“xxx xxx xxx

99. We find no infirmity with the reasoning of the learned Single
Judge in considering the use of trade marks as keywords analogous
to using the same as meta tags, for the limited purposes of
examining whether use of a trade mark, which is not visible may
infringe the trade mark. Merely because the meta tags may be visible
to a person who examines the source code of a website is not
material. The use of meta tags and keywords, in one sense, serves
similar purpose for displaying advertisement and attracting internet
traffic.

100. As noticed above, meta tags serve as a tool for indexing the
website by a search engine. Thus, if a trade mark of a third party is
used as a meta tag, the same would serve as identifying the website
as relevant to the search query that includes the trade mark as a
search term. The use of keywords in the Ads programme also serves
the same purpose. It, essentially, in a manner of speaking, tags a
link of an advertiser (sponsored link) with the keyword(s). The same
are used as a device to catalogue the sponsored link. The fact that
using a keyword may not necessarily lead to display of the advertiser's
link as a sponsored link on the SERP, pursuant to a search query that
includes a keyword as a search term, makes little difference.
Admittedly, the use of the keywords enables an advertiser for placing
its sponsored link in the short list, which is finally considered for
display on the SERP. There may be other parameters that are relevant
for determining the final list of sponsored links that are displayed on
the SERP pursuant to a search query that includes the keyword as a
search term. But that does not dispel the fact that keywords are used
to index the sponsored links for the purposes of displaying the same
on the SERP.

xxx xxx xxx

103. The learned Single Judge had referred the decision of the
Division Bench of this Court in Kapil Wadhwa v. Samsung
Electronics Co. Ltd. [Kapil Wadhwa v. Samsung Electronics Co.
Ltd., 2012 SCC OnLine Del 5172] . In that case the court found that
the use of trade mark in the source code as a meta tag was illegal.
Similarly, in Amway India Enterprises (P) Ltd. v. 1MG Technologies
(P) Ltd. [Amway India Enterprises (P) Ltd. v. 1MG Technologies (P)
Ltd., 2019 SCC OnLine Del 9061] , the court had found the use of
the trade mark as a meta tag in advertising would amount to
infringement of the proprietor's trade mark. In People Interactive (I)
(P) Ltd. v. Gaurav Jerry [People Interactive (I) (P) Ltd. v. Gaurav
Jerry, 2014 SCC OnLine Bom 4607] , the Bombay High Court had
held that the defendant had “hijacked internet traffic from the
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plaintiffs' site by a thoroughly dishonest and mala fide use of the
plaintiffs' mark and name in the meta tags of his own rival website”.
The court also found that the same resulted in infringement of the
plaintiffs' mark and had the effect of compromising and diluting its
distinctive character.


xxx xxx xxx

106. As discussed earlier, we are unable to accept that merely
because the trade mark is not visible, its use as a keyword in the Ads
programme would not amount to use of the trade mark under the
TM Act. The advent of internet and e-commerce have added new
dimensions to trade and commerce. Thus, the provisions of the TM
Act would necessarily have to be read in an expansive manner to
address the novel issues thrown up by the advancement of
technology.


xxx xxx xxx”
(Emphasis Supplied)

90. Keeping in mind the aforesaid discussion, this Court deems it
appropriate to refer to the decision in the case of People Interactive (I)
20
Pvt. Ltd. Versus Gaurav Jerry & Ors. , wherein, the Bombay High Court
while dealing with use of trademark as a meta-tag, held that illicit
plugging of the mark and domain name of the plaintiff therein, in the
meta-tags by the defendant therein, amounted to hijacking the plaintiff’s
reputation and goodwill, and piggyback ride on the plaintiff’s valuable
intellectual property. The relevant paragraphs of the aforesaid judgment
are reproduced as under:
“xxx xxx xxx

12. Meta-tags are routinely used by the search engines and search
engine robots to assess webpage contents and other relevant
material relating to a webpage in the building of search engine
indices. This is where an illicit use of meta tags can be severely
damaging. For, if in the meta tags of one website a person uses the
domain name or other unique identifying marks, characters or name
of another, a search engine, being robotized, is bound to confuse the
two, and to report that the first and the second are the same. A

20
2014 SCC OnLine Bom 4607
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search for the latter (the original, the victim) is very likely to yield
results for the former, the one that has pirated the identifying marks
or name. Now if any individual was to run up a web site and use this
Court's “keywords” or “description” meta tag contents, a search
engine robot would identify that illicit website as being the “official
website of the Bombay High Court.”


13. This is precisely what seems to have happened in this case. The
Plaintiffs' analysis showed that by illicitly plugging the Plaintiffs'
mark and domain name into his website's web pages' meta-tags, the
st
1 Defendant succeeded in diverting as much as 10.33% and 4.67%
of the Internet traffic away from the Plaintiffs to himself. There
could be no better evidence of passing off, confusion and deception.
This is, plainly, hijacking the Plaintiffs' reputation and goodwill and
riding piggyback on the Plaintiffs' valuable intellectual property.

xxx xxx xxx”
(Emphasis Supplied)

91. Thus, this Court categorically holds that use of trademark as a
keyword in the Google AdWords Policy to trigger advertisements,
amounts to use of the trademark, even if the trademark is not visible or
perceptible to the end user.
Use of Trade Mark as a Keyword amounts to ‘Use’ by Google:
92. Google has further sought to contend that use of the trademark as a
keyword, only amounts to use by the advertiser, and not use by Google. In
support of this contention, Google has sought to place reliance on the
21
decisions in Interflora Inc. and another Versus Marks and Spencer plc ,
22
L’Oreal SA Versus eBay International AG , as well as Google France
23
SARL and another Versus Louis Vuitton Malletier SA and other .
93. To determine whether use of trademark as keyword amounts to use
by Google, it is imperative to analyse the manner in which the Google
AdWords Policy operates. Under the AdWords Programme, Google does

21
[2014] EWCA Civ 1403
22
[2012] Bus LR 1369
23
[2011] Bus LR 1
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not operate as a neutral platform where advertisers can choose any words
as a keyword. Rather, Google operates a Keyword Planner Tool, whereby,
Google actively suggests those words or phrases to advertisers which are
most searched and popular. By doing this, Google actively suggests the
advertisers those keywords that are more likely to trigger their
advertisements in response to user search queries. In doing so, Google not
just suggests ordinary or generic words, but also trademarked terms. Thus,
by identifying and actively prompting advertisers to use and purchase the
trademarked term as a keyword for display of their advertisement, Google
plays an active role in the use of the trademark.
94. Furthermore, when multiple advertisers seek to choose the same
word as a keyword, including a trademarked term, Google conducts an
auction or bidding on the trademarked term, and earns a Cost-Per-Click
amount as revenue, i.e., a charge is levied on the advertiser only when a
user clicks on the advertisement and reaches the website of the advertiser.
Thus, Google does not earn any revenue from mere display of an
advertisement on the SERP, and is therefore not merely selling advertising
space on the SERP. Rather, it charges the advertiser when the user
actually clicks on the advertisement triggered by the use of another’s
trademark term as a keyword, and is diverted to such website. Thus, the
bid amount becomes payable to Google when there is diversion of traffic
by use of a trademark as a keyword. Such conduct of Google is clearly a
use in course of its trade, i.e., the trade of advertising.
95. In light of these findings, the contention of Google that it merely
‘reserves’ the keywords for the purpose of triggering the search-based
advertisements has to be necessarily rejected. It is clear that Google
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actively auctions and sells the use of the trademarked terms, and earns
revenue at the point of diversion of traffic.
96. The contention of Google that since the Keyword Planner Tool is
optional, and not mandatory, and that advertisers have full discretion to
choose their keywords, will not absolve the active role played by Google
in promoting and monetising the use of trademarked terms as keywords.
Additionally, Google categorically admits that until 2009, Google did not
permit the use of trademarks as keywords in India. However, it changed
its policy in India, and does not restrict the use of trademarks as keywords.
Thus, Google’s commercial policy is clearly designed to promote the use
of trademarked terms as keywords, and to reap commercial benefits out of
the same.
97. Google has sought to contend that the final display of advertisement
is not solely determinant on who bid the highest amount for the keyword,
but also on other facts, such as relevancy and the Quality Score of the
website. However, this contention does not help the case of Google as it
admits that the keywords used continue to be a factor in the display of the
advertisement. Presence of other factors does not nullify the impact of the
sale of a registered trademark as a keyword by Google.
98. Thus, given the active role played by Google in suggesting and
selling trademarks as keywords, and the design of the AdWords Policy
and the Keyword Planner Tool, this Court is of the view that use of
trademark as keyword amounts to use by Google also.
99. Accordingly, the contention of Google that the keywords suggested
by Google is only for internal use and that use, if any, is only by the
advertiser and not Google, is totally misplaced and rejected. Clearly,
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Google suggests, offers and sells words, including, trademark terms, as
keywords to advertisers. This active offering and selling of trademark
terms to advertisers is not mere internal use of the trademark term, and is
clearly a commercial use. Thus, use of trademark as keywords also
amounts to use by Google, wherein, Google derives a distinct advantage
by use of trademarks as keywords.
100. At this stage, it would be relevant to make reference to the judgment
of the Division Bench in the case of Google LLC Versus DRS Logistics
24
(P) Limited and Others , wherein, the Division Bench held that use of
trademark as keywords in the AdWords Policy amounts to use by Google
as well, in the following manner:
“xxx xxx xxx

Use of trade marks as keywords, whether “use” by Google

107. Google claims that even if it is held that use of trade marks as
keywords amounts to use of the trade marks; the said use is by the
advertiser and not use by Google. Google contends that it merely
permits the advertisers to use keywords for display of sponsored
links; it does not select the keywords. It claims that the keyword
selection planner is merely a tool which enables the advertisers to
take an informed decision. It is a tool that provides the advertisers
information regarding the approximate bid value of the keywords
that may be relevant for the purposes of display of the advertiser’s
sponsored link.

108. Google places heavy reliance on the decisions in Google
France SARL and Google Inc. v. Louis Vuitton Malletier SA
[Google France SARL and Google Inc. v. Louis Vuitton Malletier
SA, 2011 Bus LR 1 : (2011) All ER 411] , Interflora Inc. v. Marks &
Spencer Plc. [Interflora Inc. v. Marks & Spencer Plc., 2015 Bus LR
492 : 2014 EWCA Civ 1403] and L’Oreal SA v. eBay International
AG [L’Oreal SA v. eBay International AG, 2012 Bus LR 1369] in
support of its aforesaid contention.

109. It is relevant to refer to the decision in Google France SARL
and Google Inc. v. Louis Vuitton Malletier SA [Google France SARL

24
2023 SCC OnLine Del 4809
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and Google Inc. v. Louis Vuitton Malletier SA, 2011 Bus LR 1 : (2011)
All ER 411] , to consider the reasons that informed the said decision.
The court noted that it was common ground that the service provider
carries on commercial activity for economic advantage when it
stores keywords, which are similar to a trade mark, for its clients.
However, the court did not accept that the same would amount to
use by the service provider in the course of trade. The relevant
extract of the said judgment indicating the above view is set out
below:

“55. Although it is clear from those factors that the referencing
service provider operates ‘in the course of trade’ when it permits
advertisers to select, as keywords, signs identical with trade marks,
stores those signs and displays its clients' ads on the basis thereof,
it does not follow, however, from those factors that that service
provider itself ‘uses’ those signs within the terms of Article 5 of
Directive 89 of 104 and Article 9 of Regulation No. 40/94.

56. In that regard, suffice it to note that the use, by a third party, of
a sign identical with, or similar to, the proprietor's trade mark
implies, at the very least, that that third party uses the sign in its
own commercial communication. A referencing service provider
allows its clients to use signs which are identical with, or similar
to, trade marks, without itself using those signs.

57. That conclusion is not called into question by the fact that that
service provider is paid by its clients for the use of those signs. The
fact of creating the technical conditions necessary for the use of a
sign and being paid for that service does not mean that the party
offering the service itself uses the sign. To the extent to which it has
permitted its client to make such a use of the sign, its role must, as
necessary, be examined from the angle of rules of law other than
Article 5 of Directive 89 of 104 and Article 9 of Regulation No.
40/94, such as those referred to in para 107 of the present
judgment.

58. It follows from the foregoing that a referencing service
provider is not involved in use in the course of trade within the
meaning of the abovementioned provisions of Directive 89/104 and
of Regulation No. 40/94.

59. Consequently, the conditions relating to use ‘in relation to
goods or services’ and to the effect on the functions of the trade
mark need to be examined only in relation to the use, by the
advertiser, of the sign identical with the mark”.
∗∗∗
104. However, with regard to the question whether a referencing
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service provider, when it stores those signs, in combination with
terms such as ‘imitation’ and ‘copy’, as keywords and permits the
display of ads on the basis thereof, itself uses those signs in a way
which the proprietor of those marks is entitled to prohibit, it must
be borne in mind, as has been pointed out in paras 55 to 57 of the
present judgment, that those acts of the service provider do not
constitute use for the purposes of Article 5 of Directive 89/104 and
Article 9 of Regulation No. 40/94.”

110. We find it difficult to accept that Google is a passive service
provider and merely permits the advertisers, the use of keywords
without using it itself. A review of the Ads programme clearly
indicates that Google's role is anything but passive. It is an active
participant in promoting use of trade marks as keywords for the
purpose of its Ads programme. It actively suggests keywords that
would result in the display of ads, which are likely to result in higher
clicks. The PPC (pay per click) revenue model suggests that the
choice of the sponsored link to be displayed is based on the
probability to generate the highest revenue, which is a function of
the bid amount per click and the number of clicks. Google, by virtue
of operating the search engine over a period of time, is in a position
to suggest keywords which would result in the higher probability of
clicks (visits to the website/webpage of the advertiser). The use of the
keyword(s), as suggested, does not automatically guarantee that the
advertiser's sponsored link would be displayed on the SERP when
an internet user types the said keywords in the search bar.
According to Google, use of a keyword merely results in the
sponsored link of the advertiser being shortlisted. The final display
is based on the quality of the website and other parameters. This,
according to Google, is done by various proprietary algorithms and
by use of artificial intelligence. Prima facie, it appears that the
exercise is clearly designed to attract maximum revenue. It is
possible that an advertiser does not bid the highest amount for
particular keywords and yet a sponsored link appears at the top of
the SERP because the quality of its website and its relevance to the
search query. This would result in attracting a higher number of
clicks — that is, a higher number of persons being attracted to visit
the website of the advertiser — and the multiple of clicks and the
cost per click amount bid may be higher than the multiple of clicks
and the cost per click amount bid by the highest bidder for the
keyword.

111. The Ads programme is nothing but a programme for display of
advertisements. It is Google's commercial venture to raise
advertisement revenues by display of sponsored links, which are
placed on the result page projected to the internet user who uses
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Google's search engine for seeking web pages relevant to their
search query. The final decision as to which ad is displayed on a
search page is not that of the advertiser but is the qualitative
decision that is taken by Google. Merely because the said decision is
by automation, driven by artificial intelligence (AI), is of no
relevance considering that Google is the architect of its programme
and operates the proprietary software. One has little doubt that the
said decision is persuaded with the object of maximising its revenue.
It is contended that Google merely conducts an auction and the
person who bids the higher amount per click for the keyword
secures a chance for its ad to be displayed. The fact that Google is a
recipient of the bid amount; plays an active role in using its tools to
suggest the most relevant keywords with the object and purpose of
encouraging its use; is in full control of the decision — although
made through the use of its proprietary automated system — as to
which ad to display at which page, leaves little room for doubt that
Google is an active participant in the use and selection of keywords.

xxx xxx xxx

128. Prima facie, we are unable to accept the view that use of trade
marks as keywords in the Ads programme is use only by the
advertisers and not Google. We reject the substratal premise that
Google's participation in the Ads programme is limited to merely
providing the tools and the technical framework for advertisers to
use the keywords. As stated before, Google actively encourages and
suggests use of the keywords. It determines, albeit by use of its
software and algorithms, the ads that are displayed on the SERP. It
auctions use of keywords, including trade marks, as it is not disputed
that the advertiser that bids the higher cost per click amount is
accorded a higher priority for display of its Ads. It is difficult to
accept that whilst Google, in a manner of speaking, sells keywords
for use in its proprietary software; it does not use it.

129. As noted above, in Google France SARL and Google Inc. v.
Louis Vuitton Malletier SA [Google France SARL and Google Inc.
v. Louis Vuitton Malletier SA, 2011 Bus LR 1 : (2011) All ER 411] ,
the court was of the view that a referencing service provider (such as
Google) allows its clients to use signs, which are identical with or
similar to trade marks “without itself using those signs”. We are
unable to subscribe to this view.

130. As noted above, the role of Google is not a passive one; Google
actively promotes and encourages the use of trade marks identified
with the leading goods and service providers — which apparently
yield a higher incidence of search queries in respect of a particular
category of goods and services — as keywords by suggesting the
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same and further monetising their value. In our view Google's PPC
model, which actively uses keywords, derives a distinct advantage by
use of trade marks as keywords.

xxx xxx xxx”
(Emphasis Supplied)

101. Reading of the aforesaid judgment brings forth the following as
regards the AdWords Programme of Google:
i. Indisputably, the AdWords Programme is Google’s commercial
venture to monetise the use of the search engine for advertising by
displaying the sponsored links of various advertisers, who seek to display
their advertisements on the SERP pursuant to search queries initiated by
an internet user.
ii. Google actively encourages and suggests the use of the keywords. It
determines, albeit by use of its software and algorithms, the
advertisements that are displayed on the SERP. It auctions use of
keywords, including, trademarks, and it is not disputed that the advertiser
that bids the higher ‘Cost-Per-Click’ amount is accorded a higher priority
for display of its advertisements.
102. Thus, this Court holds that use of trademarks as keywords amounts
to use by Google also.
103. As brought forth by the evidence on record, admittedly and
undisputedly, no prior consent/ approval was sought by Google from the
plaintiff company for offering/ suggesting/ selling its registered trademark
to other entities.
104. As such, there is no permitted use within the meaning of Section
2(1)(r)(ii) of the Trade Marks Act. Defendant no. 1 has acknowledged and
admitted during the course of evidence that Google had offered/suggested
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the plaintiff’s trademarks as keywords. It is trite law that the use of a
trademark by a person who is neither a proprietor of the trademark nor
permitted to use the same, would result in infringement of the trademark.
Use of Keywords as Trademarks amounts to Infringement under the
Trade Marks Act:
105. The question that falls for consideration in the present case is
whether Google, by permitting the registered trademark “HINDWARE” to
be listed as a biddable keyword on its AdWords platform, and thereby,
enabling rival entities to purchase that keyword and cause their own
sponsored advertisement to appear first when a consumer searches for
“HINDWARE”, is guilty of infringement of a registered trademark under
the Trade Marks Act.
106. Trade Marks law recognises that a trademark is not a mere label,
rather it is a commercial asset in itself, and the value it accumulates
represents the sustained hard work, money and efforts extended by the
trademark owner in building a goodwill and reputation for the trademark.
Thus, beyond the classical function of a trademark serving as a badge of
trade origin, the Trade Marks Act also seeks to protect its investment and
advertising functions.
107. Section 28 of the Trade Marks Act provides that a registered
proprietor of a trademark is entitled to the exclusive right to the use of the
trademark in relation to the goods or services in respect of which the
trademark is registered. Section 28 of the Trade Marks Act reads as under:
“xxx xxx xxx

28. Rights conferred by registration .—(1) Subject to the other
provisions of this Act, the registration of a trade mark shall, if valid,
give to the registered proprietor of the trade mark the exclusive right
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