When Does Keyword Use Become Trademark Infringement?

When Does Keyword Use Become Trademark Infringement?

The digital marketplace runs on search visibility, and search visibility runs on keywords. When a consumer types a brand name into Google, the results page is no longer a neutral mirror of the internet, instead, it is a curated auction venue. Search engines allow advertisers, often direct competitors, to ‘bid’ on another company's trademark so that their own sponsored link appears the moment a consumer searches for that brand. The judgement dated May 22, 2026 in Hindware Ltd. v. Grohe India Pvt. Ltd. & Ors., by the Single Judge of the High Court of Delhi deals with this issue.

Factual Matrix

Hindware Limited, owns the registered trademark HINDWARE, in respect of sanitaryware and bath fittings since decades. It filed two suits – one against Grohe India Pvt. Ltd., a rival sanitaryware manufacturer, along with Google India Pvt. Ltd. and Google Inc. (later substituted by Google LLC) [CS(COMM) 591/2017], and the second against rival sanitaryware brand Cera Sanitaryware Limited, Omkara Infoweb Pvt. Ltd. (website developer for Cera Sanitaryware's website), Google India and Google LLC [CS(COMM) 592/2017]. Hindware’s grievance was that its competitors had purchased HINDWARE and its variants as keywords on Google Ads, Google's advertising platform, so that whenever a consumer searched for the term Hindware, they would be directed to sponsored advertisements of rival brands such as Grohe or Cera on the search engine results page, diverting potential customers to competitor’s sites. During the pendency of the suit, both Grohe and Omkara Infoweb settled with Hindware and decrees were passed against them on agreed terms, leaving Google India and Google LLC as the principal contesting defendants. Google’s defence was essentially twofold: first, the use of a trademark as an invisible keyword does not amount to ‘use’ under the Trade Marks Act, 1999 (‘the Act’), since the mark is never displayed to the consumer; and second, that even if it were taken as ‘use’, Google itself was merely an intermediary under the provisions of the Information Technology Act, 2000, entitled to safe-harbour protection.

Analysis of Use, Safe Harbour, And The Role Of An Intermediary

The High Court began by reaffirming that a trademark is far more than a mere source identifier. It is a valuable commercial asset embodying the goodwill, reputation, investment, and advertising value painstakingly built by its proprietor over time. Consequently, the protection afforded under the Act extends beyond the traditional origin function of trademarks and encompasses their investment and advertising functions as well. The Court gave ‘use’ a broad construction and emphasized that use is not confined to physically displaying the mark on goods. Even if the trademark itself never appears in the visible text of the advertisement, using it to trigger the display of the advertisement itself amounts to use of the trademark in advertising.

 Against this backdrop, the Court rejected Google's principal defence that the use of a trademark as a keyword does not amount to ‘use’ under the Act. The Court noted that Google neither owns any proprietary rights in the mark HINDWARE nor possesses any licence authorising it to commercially exploit the advertising value associated with the mark. Nevertheless, by incorporating the trademark into its keyword advertising system and auctioning it to competitors, Google effectively treated the trademark as part of its own commercial inventory. In doing so, Google monetised the reputation and consumer recognition associated with the plaintiff's mark without contributing to the creation of that goodwill. Such conduct could not be treated as honest or fair in trade and commerce.

A significant aspect of the judgment was the Court's interpretation of Sections 29(6)(d) and 29(8) of the Act. Emphasising the legislature's deliberate use of the words "in advertising" rather than “in an advertisement”, the Court held that the expression must be given its ordinary and expansive meaning. The term "advertising" encompasses the entire process of promoting goods and services and is not confined to the final advertisement visible to consumers. Accordingly, the use of a trademark as a keyword to trigger the display of advertisements constitutes use of the mark "in advertising", irrespective of whether the trademark itself is visible to the end user. By capitalising on the consumer attraction associated with the trademark and diverting users searching specifically for the trademark proprietor, the practice of keyword bidding takes unfair advantage of mark’s reputation for benefit of competitors.

The Court also held that Google's role extended well beyond that of a passive intermediary. Through its Keyword Planner Tool, Google, using its algorithm, actively identified and suggested trademarked terms such as HINDWARE as commercially valuable keywords to competing advertisers, conducted auctions for those keywords, and earned revenue through its pay-per-click model whenever users clicked on the resulting advertisements. By actively recommending, promoting, and selling trademarked keywords to competitors, Google was not merely facilitating advertising but was directly participating in and profiting from the commercial exploitation of the plaintiff's trademark. Consequently, the Court held that Google was not neutral but an active commercial participant and, therefore, was itself ‘using’ the trademark in the course of trade. This active involvement ultimately formed the basis for the Court's refusal to treat Google as a mere intermediary insulated from liability.

Landmark or Per Incuriam

The jurisprudence on keyword advertising in India has evolved from a visible-use analysis to a more layered inquiry into the commercial architecture of online advertising. Earlier decisions such as Kent RO Systems (2017) and MakeMyTrip (2022) were cautious in treating invisible backend use of a trademark as actionable use, particularly where the mark was not displayed to consumers and the resulting advertisement did not create confusion. The focus in those cases remained on consumer perception, visibility of the mark, and the likelihood of confusion arising from the sponsored result.

The Division Bench decision in Google LLC v. DRS Logistics (2023) refined this position. It did not hold that use of trademarks as keywords is outside the scope of the Act. On the contrary, it accepted that Google’s provision of trademarks as keywords in Google Ads may amount to “use” of the mark, including use “in advertising”. However, the Division Bench drew a clear distinction between “use” and “infringement”. It held that the use of a trademark as a keyword does not amount to infringement per se. Infringement would arise only where the sponsored advertisement or overall manner of use results in confusion, unfair advantage, dilution, blurring, tarnishment, or impairment of the trademark. The Division Bench also recognised that offering consumers competing choices, by itself, is not unlawful. The Supreme Court later declined to interfere with the Division Bench ruling, leaving those principles undisturbed.

Hindware assumes significance as the Single Judge proceeds from the premise that the use of HINDWARE as a keyword constitutes use “in advertising”, but appears to go further by treating Google’s keyword advertising ecosystem itself as a form of commercial exploitation of the trademark. The judge’s view is that the commercial value of a trademark extends beyond its visible use and includes its advertising and investment functions. Thus, his ruling shifts attention from the content of the sponsored advertisement alone to the mechanics of Google Ads: the recommendation of trademarked terms through the Keyword Planner Tool, the auctioning of such terms, the pay-per-click revenue model, and the monetisation of consumer searches for a specific brand. In this sense, Hindware reframes the inquiry from whether the advertisement visibly misleads the consumer to whether the advertising infrastructure appropriates the advertising functions of a trademark.

Analysing further, to the extent Hindware merely holds that trademark use as a keyword is “use” under the Act, it is broadly consistent with DRS Logistics. However, to the extent it treats invisible keyword use and Google’s monetisation of such use as actionable infringement without a distinct inquiry into confusion, unfair advantage, dilution or impairment in the resulting advertisement, it arguably travels beyond the framework laid down by the Division Bench. Since Hindware is a Single Judge decision, this aspect may be vulnerable to challenge on grounds of stare decisis and, potentially, per incuriam. Meanwhile, the unresolved question is not whether keyword use is “use” - DRS Logistics had already answered that in the affirmative - but when such use crosses the line into infringement in a given case.

Google has challenged the decision before a Division Bench of the Delhi High Court. Its appeal proceeds on expected lines: that Hindware departs from the settled legal position on keyword advertising and is inconsistent with the binding precedent in DRS Logistics. The Division Bench has issued notice, and the appeal is listed for consideration on July 24, 2026.

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