Is it required for trademark holders to invest in Google Ads to protect their intellectual property rights?
In a significant ruling, the Supreme Court of India has clarified its stance on the use of trademarks as keywords in the Google Ads program. The case, Makemytrip (India) Private Limited versus Google LLC & Ors, involved the travel booking platform MakeMyTrip, who initiated the lawsuit to protect its registered trademarks, which were being used by Booking.com B.V. as keywords in the Google Ads Program.
The Court determined that Booking.com's actions did not inherently constitute trademark infringement, as it did not result in confusion for the internet user. The judgement asserted that keyword advertisements are not classified as 'use' under Section 29(1) of the Trademarks Act.
The practice of bidding on trademarks as keywords in the Google Ads program compels trademark proprietors to bid on their own trademarks to prevent competitors from using them for advertising. This was noted by the Single Judge in the case, who observed that this forced bidding is due to Google allowing non-proprietors to bid for a registered trademark as a keyword.
MakeMyTrip reportedly is forced to bid for its own registered mark on the Google Ads Program daily and monthly, with a monthly investment of approximately Rs. 6 crores. Competitors engage in bidding wars over each other's trademarks to increase the visibility of their products and services on the search engine.
Indian trademark infringement law emphasizes both consumer confusion and the rights of traders. However, the Court's decision in the MMT v Booking.com case concluded that keyword advertisements are not classified as 'use' under Section 29(1) of the Trademarks Act, primarily based on the presumption of business loss, rather than consumer confusion.
The Court's decision is a significant development in the realm of online advertising and trademark law in India. It underscores the importance of clarity in the use of trademarks in digital advertising, particularly in the competitive travel industry.
While the exact monthly investment of MakeMyTrip for eigene Marken-Suchbegriffe (own branded search terms) in the Google Ads program remains a business secret, industry estimates suggest that such budgets for large travel portals like MakeMyTrip can range from six to seven figures, depending on the market and season.
For those requiring concrete numbers and details, it is recommended to directly approach Google Ads or MakeMyTrip. However, such information is often difficult to obtain in practice. Alternatively, tools like SEMrush or Google Ads Transparency Center can provide rough estimates, but precise figures remain internal.
In conclusion, the Supreme Court's ruling on the MMT v Booking.com case has provided much-needed clarity on the use of trademarks as keywords in the Google Ads program, emphasizing the importance of clear digital advertising practices in India.
