Delhi High Court Sets Aside Single Judge Order Restraining Booking.com From Using 'MakeMyTrip' Mark As Keyword On Google Ads Program

The Delhi High Court has set aside a single judge's order which restrained Google and online travel agency Booking.com from using 'MakeMyTrip' mark, with or without spaces, as a keyword on the Google Ads Program.

A division bench of Justice Vibhu Bakhru and Justice Amit Mahajan observed that Booking.com is a well-known and popular platform offering travel services and that prima facie, it cannot accept that an internet user is likely to be misled into believing that the services offered by it are those of Make My Trip.

Make My Trip had filed a suit against Google and Booking.com seeking to restrain from adopting or using its registered word marks as keywords through the Google Ads Program or using them in any manner amounting to infringement of its trademarks.

The single judge on April 27 last year granted interim injunction in favour of Make My Trip, observing that use of its registered mark by competitors even as metatags is an infringement under the Trademarks Act and that third party bidding on trademarks as sponsored keywords for use by internet search engines can constitute misrepresentation.

Google then filed appeal against the single judge's order.

Setting aside the impugned order, the division bench relied upon a recent ruling of a coordinate bench in Google LLC v. DRS Logistics (P.) Ltd. and

Ors. wherein it was held that the use of trademarks as keywords would amount to use by Google as well as the advertiser.

“It is important to note that a search for MIPL's name or its trademarks using Google's search engine, would show MIPL's web address in organic search results on the SERP. MIPL, essentially, claims that Booking.com's advertisements or links should not be visible as sponsored link on the SERP. Prima facie, we are unable to accept that MIPL can claim any such right on the basis of its rights under the Trademark Act,” the court said.

Furthermore, the bench said that the single judge's view that use of trademark 'MakeMyTrip' as a keyword by Booking.com, which is one of its major competitors, would amount to infringing use, was erroneous.

“This is because the services offered by Booking.com are similar to the services covered by MIPL's trademarks. In these circumstances Section 29(4) of the Trade Marks Act would have no application,” the court said.

Counsel for Appellant (Google): Sandeep Sethi, Senior Advocate with Mr Neel Mason, Mr Ankit Rastogi, Mr Vihan Dang, Ms Aditi Umapathy and Ms VarshaJhavar, Advocates

Counsel for MakeMyTrip: Mr Amit Sibal, Senior Advocate with Mr Mohit Goel, Mr Sidhant Goel, Mr Deepankar Mishra, Mr Abhishek Kotnala, Mr Karmanya Dev Sharma, Mr Risabh Sharma & Mr Saksham Dhingra and Ms Mouli Rajput, Advocates

Counsel for Booking.com: Mr Ankur Sangal, Partner along with Ms Pragya Mishra, Principal Associate and Mr Shashwat Rakshit, Associate, from Khaitan & Co.

Counsel for Respondent 4: Mr Arun Kathpalia, Senior Advocate with Mr Aditya Gupta, Mr Raunaq Kamath, Mr Rahul Bajaj, Mr Sauhard Alung and Ms Diksha Gupta, Advocates

Title: GOOGLE LLC v. MAKEMYTRIP (INDIA) PRIVATE LIMITED AND ORS.

Citation: 2023 LiveLaw (Del) 1288

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