By Lucy Rana and B. Michael Shriney
For years, businesses have watched competitors surface on the search results page the instant a customer types their brand name. The technique is simple: buy the rival’s brand as a paid-search keyword, and your sponsored link appears alongside, or above, the results the customer was actually looking for. In Hindware Ltd. v. Grohe India Pvt. Ltd. and the connected matter against Omkara Infoweb, the Delhi High Court confronted the practice directly, and held that selling a registered trademark as an advertising keyword is itself an infringing use in advertising. Just as importantly, it held that the advertising platform cannot run the keyword auction, and keep the revenue, and then disclaim responsibility as a mere intermediary.
Case Details: HINDWARE, keyword auctions and a long-running dispute
Hindware, a well-known sanitaryware brand, discovered that competitors were purchasing HINDWARE and related combinations, such as HINDWARE SANITARY and HINDWARE SANITARYWARE, as keywords through a search-advertising programme. When a customer searched for Hindware, the competitors’ sponsored links appeared. Hindware brought two suits, one against a competitor and the search platform, and one against a website developer, its client competitor and the platform. The competing businesses settled and agreed to stop the keyword bidding. The search platform contested, and the case became a test of the platform’s own liability rather than the advertisers’.
Court Ruling
The Court held that the use of a registered trademark as a keyword to trigger the display of an advertisement is a use of the mark in advertising, and can amount to infringement, even though the keyword itself is never seen by the consumer. Invisible use, in other words, is still use. Where an identical mark is used in this way, the Court was prepared to presume a likelihood of confusion under the infringement provisions of the Trade Marks Act, 1999.
The platform’s central defence was that it never used the mark in any visible sense, and that any use was the advertisers’. The Court rejected that. It found that the platform played an active role: it suggested the trademarked term through its keyword tools, it auctioned the keyword, and it earned revenue each time a sponsored link was clicked. A party that supplies the very tool that enables infringement, and profits from it, cannot then claim that the tool was optional. The platform could not shelter behind its intermediary status while doing so, and the Court drew on comparative authority, including decisions of the Court of Justice of the European Union and the United States courts, as well as earlier Indian authority on intermediary liability.
The Court granted a permanent injunction restraining the platform from using HINDWARE and its variants as advertising keywords, and awarded to Google LLC and Google India Rs. 30 lakh in damages, together with costs. It treated HINDWARE as a coined and well-known mark, which strengthened the protection available to it.
Brand Owners need to be cautious
The decision matters because so much brand value is now captured, or diverted, at the search results page. If a competitor can intercept your customers by buying your brand as a keyword, the goodwill you have built funds their traffic. This ruling confirms that such interception can be an infringement, and that the remedy can run not only against the advertiser but, on the right facts, against the platform that sells and suggests the keyword. It is especially significant for owners of coined and well-known marks, whose brand names have no descriptive meaning and are therefore hard to justify as keywords at all.
Practical steps for brand owners
- Monitor your branded searches. run searches for your own brand and watch which sponsored links appear. If competitors are surfacing on your branded searches, capture the evidence with dates and screenshots.
- Register the variants. register your core marks and their commercial variants, so that the identical-mark route to infringement, and the presumption of confusion, are available to you.
- Invest in distinctiveness and reputation. a coined or well-known mark is far easier to protect as a keyword, because it carries no ordinary descriptive meaning. Build and document the reputation of your mark.
- Put the platform on notice. ask advertisers and platforms to stop bidding on your marks, and keep a record. The platform’s response, and its role in suggesting and auctioning the keyword, can matter to liability.
- through injunctions and prayer for damages. Where reputation and identical-mark use are clear, moving promptly is often decisive.
What the ruling did, and did not, decide
The decision turned on its facts, including that HINDWARE is a coined and well-known mark and that the platform played an active role in suggesting and auctioning it. It does not mean that every use of every word as a keyword is an infringement, and the position for descriptive or common words may differ. The value of the case lies in its clear statement that keyword use is use in advertising, and that an active platform cannot avoid responsibility by pointing to its advertisers.
Frequently Asked Questions
TM Protection
It can be. The Delhi High Court held that using a registered trademark as a search-advertising keyword is a use of the mark in advertising and can amount to infringement, even though the keyword is invisible to the consumer, particularly where the mark is identical and distinctive.
Yes, on the right facts. The Court held that a platform that suggests, auctions and earns revenue from a trademarked keyword plays an active role and cannot shelter behind its intermediary status.
A trademark owner may seek an injunction restraining the use of its marks as keywords, together with damages and costs, as the Court granted here.
No. The Court held that invisible use as a keyword is still a use in advertising, so the fact that the mark does not appear in the advertisement text is not a defence.
Monitor your branded searches, register your marks and their variants, build and document the reputation of a distinctive mark, put advertisers and platforms on notice, and enforce your rights where interception is clear.
No. This particular judgment was based on specific facts, including the use of the coined and reputed mark HINDWARE and the active role played by the advertising platform. The legality of keyword advertising may depend on factors such as the nature of the mark, the likelihood of consumer confusion, and the manner in which the keyword is used.
Yes. Well-known and coined marks generally enjoy a wider scope of protection because they are strongly associated with a single commercial source and lack any descriptive meaning. The Court noted that HINDWARE’s status as a coined and well-known mark strengthened the case for protection.
Yes. The Delhi High Court recognised that the harm caused by keyword bidding is not limited to confusion at the point of purchase. Where a competitor uses a registered trade mark as a keyword to attract consumers searching for the trade mark owner’s products or services, it may divert customer attention and exploit the goodwill associated with the mark. Such consumer diversion at the search stage can constitute infringing use in advertising, even if the trade mark itself is not visible in the advertisement.
The Hindware decision brings the invisible mechanics of search advertising within the reach of trade mark law. A brand name is an asset, and the moment a customer searches for it is the moment that asset is most valuable, and most vulnerable. For brand owners, the practical message is to watch the search results page as carefully as the shelf, and to treat keyword interception as the infringement it can be.
It is the practice of buying another business’s brand name as a paid-search keyword so that your sponsored advertisement appears when users search for that brand.
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