“Be that as it may, it is clear from Google’s EU and EFTA policy that Google provides a higher duty of care in a jurisdiction where large portions of the population are internet literate,” Delhi High Court Judge Kameswar Rao noted in his ruling last week in the case of a packaging and moving company’s lawsuit against Google.
DRS logistics, which owns Agarwal Movers and Packers, had moved the Delhi High Court against the tech giant in a case of copyright infringement in 2015, alleging that Google let third parties use its trademark as keywords in their advertisements.
Keywords are terms used in Google Ads which allow its search engine to rank and display an advertisement among search results, based on its relevance. DRS Logistics owns the trademark ‘Agarwal Packers and Movers’. The lawsuit, which alleges that Google discriminated against the plaintiff and profited from bidding on its trademark, provides insight into how Google’s advertising systems and policies are implemented in India.
Key observations made by the court
Use of trademarks in keywords unlawful: The Delhi High Court held that the use of trademarks as keywords is an infringement of the Trademark Act.
“..a perusal of Section 29(9) (of the Trademark Act) 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.” — Justice Kameswar Rao.
Google responsible for trademark infringement: The court further held that for such trademark violation through keywords, Google will be held liable. It referred to Google’s AdWords Program as a reason.
“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.” — Justice Kameswar Rao
According to Google’s AdWords Program, it determines a quality score (a factor in determining ad rankings and display) for an ad based on the relevance of keywords, quality of the advertiser’s landing page, the ad’s click through rate (CTR), adjusted for its position on the page, and other factors.
Deviation from Google’s EU policies: Until 2015, Google followed a policy of investigating trademark infringements through keywords in India after which it restricted the policy to only a few countries – notably the European Union.
“[…] it is clear that the fact that Google is investigating an Ad where use of trademark as a keyword is being used, there cannot be any reason why such a procedure is not followed in India.” – Justice Kameswar Rao.
Google cannot get safe harbour protection: The court rejected the argument that Google has safe harbour protection or safety from liability originating from third-party content on its platform under Section 79 of the IT Act. Citing precedent in the case of Christian Louboutin Sas versus Nakul Bajaj, the court said:
“..surely there is an obligation on part of Google to ascertain that the keyword chosen by the advertiser is not a trademark and even if it is a trademark the same has been licensed/assigned.” – Justice Kameswar Rao
How does Google review advertisements?
In its submissions, Google revealed how its systems review advertisements and handle trademark-related complaints therein. After an ad has been created or edited, Google reviews it through an automated process to check for violations of any laws, such as the Pre-natal Diagnostic Techniques Act, 1994 (PCPNDT).
While the areas reviewed here are the content which includes the headline, description, keywords, destination, and any images and videos that the ad also contains, Google said trademark violations are only investigated by the system when a complaint is registered. Ads found in violation are removed and the violating account can also be suspended.
Google’s advertising policy about trademarks
Google’s policy (for India) says that trademarks can be used in the ad text and ad title of advertisements if it implies general use of the term (and not the brand) or if it is not in reference to the goods or service concerning the registered trademark owner.
But in policy specifically for the EU and European Free Trade Association, as submitted during the trial, Google investigates the use of trademarks as keywords in published ads, especially those with a confusing combination of ad text and keywords.
More on Google’s troubles in India
In 2018, the Competition Commission of India (CCI) fined Google Rs 135.86 crore for “search bias” and abusing its dominant position in the market. The allegations largely revolved around the design of the Google search engine result page. It was also alleged that the company was leveraging its dominance in web search to strengthen its position in online syndicate search services, as competitors were denied access to the market.
In 2020, the CCI ordered a detailed investigation into Google’s payment policies and alleged manipulation into its practice within Play Store.
In 2021, the Alliance of Digital India Foundation (ADIF) filed a petition before the CCI for interim relief from Google’s new Play Store policy.
US states sue Google for monopoly in online advertising
A recently unredacted lawsuit filed by 16 US states alleges that Google unlawfully monopolised online advertising. The tech giant, which facilitates advertisements across various platforms – YouTube, webpages, and Google search – allegedly locks in users to its Google ads tools as it does not allow them to export their data to another service easily. “When deciding which ad buying tool to use, most advertisers chose Google’s because it was the only way to purchase Google Search ads and display ads on Google’s leading display network, GDN […] Advertisers tend to use a single ad buying tool because multiple tools post significant costs in terms of time, effort, training, and expenses, ” the lawsuit states.
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