 "MakeMyTrip")
The Supreme Court on Thursday dismissed a plea by online travel agency MakeMyTrip (MMT) against Google over the misuse of its trademarks as “keywords” on the tech giant’s ads programme to display links to its rival Booking.com.
Last year in December, the Delhi High Court ruled that the mere use of trademarks on Google Ads, an online advertising platform, did not amount to infringement under the Trade Marks Act, 1999. The order indicates that a third-party trademark can be used in AdWords (Google’s advertising system) bidding if it does not result in any confusion, or mislead users about sponsored links and displayed ads.
MakeMyTrip (MMT) claimed that its trademarks, “Makemytrip” and “MMT”, were being used as “keywords” in Google Ads to display ads and links of its rival Booking.com.
A bench led by Chief Justice of India DY Chandrachud dismissed the plea, saying those looking to book their tickets through ‘MakeMyTrip’ would not confuse it with 'booking.com'. The apex court also said the Delhi High Court ruling was an interim order, as the trial in the Intellectual Property (IP) infringement case was yet to conclude.
Senior Advocate Mukul Rohatgi, appearing for MMT, said the Delhi High Court was not an interim order. “It is a clear case where they (booking.com) are piggy-riding on my reputation,” he said.
“Where is the passing off? Point is when somebody wants to search MMT, we see Booking.com and MMT both appear on the screen, so where is the passing off?” the CJI asked.
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“My competitor is not paying for the keyword ‘make’ or ‘my’ or ‘trip’ but ‘MakeMyTrip as a whole by paying more than me for the keyword which is my registered trademark so that their result shows above my own in the Google search results. So, my registered trademark is being sold to them as an adword,” another counsel for MMT submitted.
There is no scope for confusion. If you book a ticket on MMT you won’t go to Booking.com after being confused, the CJI said.
On December 14, the division Bench of the Delhi High Court passed the verdict on the case involving MMT and Google. The judgment was passed in appeals arising from a June 2022 order in which a judge restrained Booking.com from conducting the Google AdWords bidding on MMT’s trademark. The division Bench now set aside that order.
The High Court bench considered provisions of the Trade Marks Act, 1999, including Section 29(2), 29(4), 29(8) and 29(7), for its ruling.
The court observed that Booking.com is a popular website and that the chances of confusion over MMT and Booking.com were low. The order implies that there is always the possibility of a person or entity paying a price to be linked with a popular brand, such an action will not be considered trademark infringement.
Rather than right or wrong, the question addressed by the court was whether MMT’s trademark was violated or not.
