Invisible Use, Visible Harm: High Court Holds Platform Accountable For Trademark Keywords

INTRODUCTION

For years, Indian businesses have quietly watched their competitors lift their brand names off the search results page. By bidding per click on a rival’s trademark, your own sponsored link surfaces the moment a customer types that rival’s name. The Delhi High Court’s decision in Hindware Ltd. v. Grohe India Pvt. Ltd.- confronts the practice directly. The Court held that selling a registered trademark as an advertising keyword is itself an infringing “use in advertising,” and, more strikingly, that Google cannot shelter behind its intermediary status while running the auction and keeping the revenue as well.^[1]  The Court granted a permanent injunction restraining Google LLC and Google India from using the Plaintiff's registered trademarks, including "HINDWARE" and its variants, as advertising keywords on the Google Ads platform, and further directed Google to pay damages and costs.

BACKGROUND AND FACTS

Hindware Limited, sells sanitaryware under the HINDWARE mark, registered since 1991 and judicially recognised as a well-known mark. Between 2013 and 2014 it discovered that two rivals, Cera and Grohe, had purchased “HINDWARE” and its variants as keywords through Google’s AdWords (now Google Ads) programme, so that a search for “hindware sanitaryware” threw up the competitors’ websites as the first sponsored result. Two suits followed. The advertiser and Defendants- Grohe, Cera, and the web developer Omkara Infoweb, all settled and consented to decrees, which left Google LLC and its Indian subsidiary as the only contesting parties. The litigation thus became a test of the platform’s own liability, rather than the advertisers’. 

Google’s defence rested on two planks. First, it had never “used” the HINDWARE mark in any visible sense, since the word never appeared in the rivals’ advertisement text. Second, as a neutral intermediary, it was protected by the safe harbour under Section 79 of the Information Technology Act, 2000. 

ANALYSIS OF THE JUDGMENT

Section 29(6)(d) of the Trade Marks Act, 1999 provides that a person “uses” a registered mark if he uses it “in advertising.” Google argued that “advertising” here functions as a noun- the mark must appear in an advertisement. The Court refused, observing that the statute says “in advertising,” not “in an advertisement,” and that the legislature’s choice of the gerund captures the entire process of advertising rather than the finished creative. Read together with Section 2(2)(c), which extends “use” of a mark to “any other relation whatsoever,” the Court held that even invisible use, a keyword the consumer never sees- is use of the mark.

This reasoning matters because invisibility was the whole point of the defence. Keyword bidding works precisely because the trademark operates backstage: it triggers an advertisement without ever surfacing in it. By holding that the back-end trigger is still “use in advertising,” the Court closes the gap platforms have long relied upon. In doing so it builds on the Division Bench in Google LLC v. DRS Logistics (P) Ltd.,^[2] which had already held keyword use to amount to use of a mark, and hardens that reasoning into a definitive finding of liability rather than an interlocutory observation.

A significant part of the judgment concerns Google’s potential liability. The Court drew a careful line between a passive conduit and an active commercial actor. On the evidence, including the cross-examination of Google’s own witnesses, it found that Google permits competitors’ registered marks to be bid upon and auctioned, takes no prior consent from the trademark owner, shares none of the resulting revenue with that owner, and, through its Keyword Planner tool, actively suggests keywords to advertisers. Auctioning the mark, in other words, is not something that merely happens on Google’s platform; it is Google’s product. From this the Court concluded that Google “is not a passive intermediary but runs an advertisement business, of which it has pervasive control,” and therefore cannot claim Section 79 safe harbour in respect of the Ads programme. The relief followed: a permanent injunction against both Google entities, nominal damages of Rs 30 lakh payable jointly and severally, and actual costs.

Three implications deserve attention:

●      The first concerns intermediary liability. The judgment narrows safe harbour by asking what the intermediary does to earn its money, not what label it wears. Section 79 protects neutral hosting; it does not, on this reading, protect a revenue model built on monetising someone else’s mark. That is a defensible line, yet it sits in tension with the structural logic of safe harbour, which exists so that platforms need not adjudicate every transaction they carry. Critics will argue the Court has effectively made Google the guarantor of every advertiser’s trademark compliance.

●      The second concerns trademark protection online. The decision is unmistakably proprietor-friendly. It hands Indian brand owners a direct remedy against the platform and a faster and deeper-pocketed target than a transient advertiser. But the Court’s analysis of consumer confusion is noticeably thinner than its analysis of “use.” Treating use-as-keyword as close to per se actionable risks under-weighing whether consumers are in fact misled, particularly where sponsored links are clearly labelled as advertisements.

●      The third is comparative, and worth only a brief glance. India is drifting away from the more permissive international consensus. In Google France v. Louis Vuitton the Court of Justice of the European Union held that Google does not itself “use” a mark merely by storing it as a keyword, leaving primary liability with advertisers and the hosting exemption potentially intact.^[3] United States courts, in Rosetta Stone^[4] and the 1-800 Contacts^[5] line of cases, accepted that keyword sales are “use in commerce” but routinely found no likelihood of confusion. The present case  travels further than either, fastening liability onto the platform itself.

CONCLUSION

This case is among India’s first definitive decisions that a search engine can be liable for selling trademarks as keywords, and it answers its own implicit question- Can Google sell your brand name?- with a firm no, at least not without consequences. 

Its statutory reading of “in advertising” is textually sound and likely to endure. Its treatment of safe harbour is the braver stroke and will surely invite appeal, because it asks platforms to internalise a trademark risk they have long externalised onto their advertisers. For brand owners the judgment is a potent new lever; for platforms it is a warning that an Indian revenue stream cannot be quarantined from Indian trademark law. The harder questions left open- how much confusion must actually be shown, and whether a keyword auction can be run lawfully at all- will shape the litigation that follows.

Niharika Puri

Associate| Attorney at Law

niharika.puri@iprattorneys.com

References:

^[1]Hindware Ltd. v. Grohe India Pvt. Ltd., CS(COMM) 591/2017 & 592/2017 (High Court of Delhi, decided 22 May 2026, Mini Pushkarna J.), MANU/DE/4120/2026.

^[2]Google LLC v. DRS Logistics (P) Ltd., 2023:DHC:5615-DB.

^[3]Case C-236/08, Google France SARL v. Louis Vuitton Malletier SA [2010] (Court of Justice of the European Union).

^[4] Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144 (4th Cir. 2012).

^[5] 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229 (10th Cir. 2013).