DRS LOGISTICS V. GOOGLE: REVIVAL OF THE THIRD PARTY TRADEMARK AS A KEYWORD DISPUTE.
With the technological development and the emergence of the Online platform, the online world or virtual worlds has had a significant impact on our lives and relationships. Companies are also shifting to the virtual environment in terms of meeting the industry's growing demands. Businesses nowadays use a variety of advertising and marketing to control traffic to their establishment. Keyword marketing is an instrument that enables search engines and item advertising companies to showcase advertisements that are customized depending on customer search queries.
INTRODUCTION
Because the Internet has the ability to spot and interact with the intended audience, internet marketing is the most obtainable and attractive way for businesses to sell goods and services.
Businesses seek to lure customers to the brand by using Google Ads word programme, Link tags, Deep-linking, and Meta Tagging. Search engine marketing has a significant advantage in that it displays useful advertisements next to targeted consumers at the exact time the consumer indicates his or her curiosity while browsing the web.
As a result, the main goal of online advertising is to demonstrate the most relevant ads to the right customers at the correct time.
BACKGROUND
In the latest instance of DRS Logistics Pvt. Ltd & Others vs Google India Pvt Ltd & Others, CS (Comm) 1/2017, the High Court of Delhi dealt with the issue of third-party/competitors using the Complainant's trademark 'Agarwal Movers and Packers' as Key phrases on the Respondents search engine and enabling the internet sites of its competing companies to be showcased as a popular search consequence when customer comes the Plaintiff's brand name.
The Claimant also stated that despite a couple of beneficial decrees against third-party advertising companies, the violating copyright use of the brand name has still not been deactivated.
The Claimant has named Google India and its parent organization Google LLC as defendants. Claimant has also named Justdial as a Defendant No. 2 in this case.
Plaintiff claims that using his brand name as key phrases by the search query generates doubts in the minds of the public at large and also distracts website traffic to the webpage of the 3rd party, having caused monetary damage to the Claimant and diluting its public image.
In assistance of this assertion, the Claimant supplied the judges with an affidavit of a consumer in which the consumer stated that he had been supplied with subpar provider by a 3rd party advertising under the Claimant's brand name, suggesting that he will be somewhere affiliated with the Claimant.
Google (Defendant) asserted that the hidden utilization of brand names as key phrases does not constitute "use" under the Trademarks Act 1999, but neither does it constitute patent infringement or passing off. It also claimed that Indian customers are "educated or semi-literate" and cannot be misled even if 3rd party trademarks are being used as key phrases.
The respondents also claimed that Google's supported outcomes method is distinct from the method used to produce organic traffic by the use of metatags.
Google asserted that there are numerous variables engaged when a promotion is showcased by the algorithm in use by its Adwords programme, and they are not solely for monetary payment. Though distinct, search terms and metatags are being used to demonstrate actual relevance and seem to be at the top of search engine results result list, regardless of wether natural or financially supported.
The Respondent (Google) also claimed that this is a middleman and has no responsibility to consider whether the advertiser's key phrase is a trademark. As a result, Google is entitled to the benefit afforded by Section 79 of the Information Technology Act of 2000.
ISSUES INVOLVED
-
The point of concern was whether hidden use of a corporate logo constituted "use" under Sections 2(2)(b) and 2(2)(c) of the Trademark Act.
-
As to if using a brand name as a word or phrase by a 3rd person constitutes patent infringement and passing off?
-
Is it true that using mark as a word or phrase redirects traffic from the initial proprietor's webpage to the advertiser's?
-
Is Google a middleman for obtaining protection under Section 79 of the Information Technology Act of 2000?
JUDGMENTS
The High Court of Delhi issued the judgement, guiding the Respondent’s Google India and Google LLC to probe the Complainant's customer complaint about the use of their brand name as a word or phrase in advertisements and to determine whether this use amounts to infringement of trademark or passing off.
Furthermore, if Google determines that such search term usage constitutes violation or passing off, the advertisements should be removed from their webpage.
Prior to the order issued by the High Court of Delhi in this case, the order was issued by the High Court of Madras in the case of Consim Info Pvt. Ltd vs Google (2013) functioned only as a convincing worth and was not conclusive in nature by making reference to the use of 3rd party trademarks as key phrases as infringement of trademark because the trademark in use by Consim was informative of its offerings.
The Delhi High Court ruled in its decision that using 3rd party trademarks as key phrases by web pages constitutes 'Use' and infringement of trademark. The DHC's order straightforwardly holds Google's Ads Word scheme responsible for the infringement of the owner's proprietary information.
ANALYSIS
Google's Ad Words scheme was a large marketing business that Google relied on to make a lot of money. This programme assisted advertisers in paying for promoting their products by connecting them to relevant keywords and phrases or findings.
As a result, consumers looking for a good or service to purchase will not have to pay the fees to search online on the web browser.
As a result, it is inferred that the item marketers were obliged to purchase search words based on the maximum bid in order for their advertisement to be energized on the Website while still being looked at. When consumers use a search engine to search a service or product, the web browser returns two types of results. The first are the actual search results, and the second are the sponsored links, each with its own URL.
Keyword marketing is an instrument that enables search engines and item advertising companies to showcase advertisements that are customized depending on customer search queries. When a customer completes an ad containing key phrases bought by the businesses, the companies have to pay the pricing to Google.
Infringement of a trademark occurs when a particular side uses another party's registered trademarked name as a search term to link to its own site in order to promote its own products and services. This activity has a massive effect on the registered mark owner's company.
REFERENCES
https://spicyip.com/2021/11/revival-of-the-third-party-trademark-as-a-keyword-dispute.html
https://indiankanoon.org/doc/39453430/
https://swaritadvisors.com/blog/keyword-dispute-between-drs-logistics-vs-google/amp/
https://iprlawindia.org/m-s-drs-logistics-p-ltd-anr-v-google-india-pvt-ltd-ors-cs-comm-1-2017/
Written by:
Ishani Khanna.
