Invisible Trademark Infringement and The Google AdWords Conundrum:

An Analysis From The Perspective Of Indian Trademark Law

Abstract

Modern businesses such as online retailers, service providers, etc., adopt various strategies to a gain an edge over competitors both in online and physical space. One of such advertising strategies is the use of Google AdWords Program which requires advertisers to bid on or buy keywords so that their advertisement appears more prominently when any online user searches for such keywords. This practice might lead to a situation where an advertiser tries to capitalize on the goodwill of a registered trademark buy using trademarked terms as keywords on the Google AdWords Program. It is possible that a user searched for a particular business entity and landed on the website of its competitors because the AdWords Program displayed the latter’s website as the prominent result. This can be understood by a single example. If Google enables a registered trademark ‘Giga’ to be used as keywords by the proprietor’s competitors, advertisements of these competitors will be displayed prominently whenever a consumer searches for ‘Giga’. It may divert consumer traffic to the competitors’ website which was meant for Giga’s proprietor and may also lead to consumer confusion regarding the origin of goods and services. Since keyword search is a back-end functioning of a search engine, the issue of trademark infringement becomes a tricky one. The authors, in this paper, have tried to comprehensively examine the functioning of the AdWords Program and the approach taken by courts across the globe in relation to invisible infringement of trademarks. The emerging jurisprudence of invisible infringement has been critically analyzed with special reference to the Indian trademark law.