Delhi High Court Checks-in With Clarity in Makemytrip and Booking.com Keyword Dispute

Relying on the decision passed in Google v. DRS Logistics , a Division Bench of the Delhi High Court recently held that use of “MakeMyTrip” as a keyword shall not amount to trademark infringement. SpicyIP intern Vedika Chawla writes on this development. Vedika is a third-year B.A.LL.B. (Hons.) student at National Law University, Delhi. Her previous posts can be accessed here .



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Delhi High Court Checks-in With Clarity in Makemytrip and Booking.com Keyword Dispute



By Vedika Chawla



In a decision on 14 December, 2023, a division bench of the Delhi High Court set aside an injunction order of a single judge from 2022, and held that the mere use of trademarks as keywords cannot be held to be infringement when there is no confusion or unfair advantage. Earlier developments in this case were discussed in this post by Sangita Sharma.



MakeMyTrip (MIPL) had contended that the use of ‘MakeMyTrip’ as a keyword by the Google Ads Program and Booking.com bidding on the keyword led to search results including the address of Booking.com even when an internet user enters ‘MakeMyTrip’ as the search input. The Court held that this did not per se constitute infringement of the trademark, since there was no confusion caused in the mind of the internet user. When a user searches for ‘MakeMyTrip’ in Google’s search engine, the Court noted, seven out of ten times, a sponsored link to Booking.com appears after the organic search result of MIPL itself. Since Booking.com is also a well-known platform offering similar services, the Court concluded that there could be no confusion between the services offered by MIPL and those offered by Booking.com.



Discussing the judgement of the single judge, the Court further stated that the prima facie view that the use of keywords amounts to taking unfair advantage of the trademark, as taken in the impugned judgement, was incorrect. Additionally, since the nature of services offered by both entities is similar, no infringement could be made out under Section 29(4) of the Trademarks Act, 1999.



Further, the Court found that what MakeMyTrip was essentially claiming was that Booking.com’s advertisements or links should not be visible as sponsored link on the results page of the Google search of ‘MakeMyTrip,’ which is not a right that could reasonably be located within the Trademarks Act. 



This decision echoes the ruling in the Google v. DRS Logistics case earlier in the year, where the court recognised that the assumption that an internet user is merely searching the address of the proprietor of the trademark when s/he feeds in a search query that may contain a trademark, is erroneous. S/he may very well be looking for product or service reviews or searching for competitors in the same field.



In an earlier post by Nivrati Gupta, she discussed the narrow and broad interpretations of ‘use’ in trademark law across jurisdictions, and analysed how the DRS judgement does not recognise keyword advertisements as ‘use’ under Section 29(1) of the Trademarks Act. That post discussed how the Court in DRS stated that ‘likelihood of confusion’ test was not applicable in the case of keywords since the internet user operating a search engine is presumed to be aware of its rudimentary functions. The initial interest confusion test finds no application here, as per the judgement. The recent judgement, interestingly, still vaguely employs this test as an alternative reasoning when it holds that there is no likelihood of confusion in the mind of the user, while also placing reliance on DRS to invoke the rudimentary function concept. There has been much confusion regarding the IPR implications of keyword advertising, including through conflicting judgements of High Courts. However, an analysis of the reasoning underlying the various judgements perhaps presents an explanation. The Madras High Court judgement that considered keyword usage to be infringement of trademark addressed a case where the ‘Bharatmatrimony’ trademark was infringed by competitors using the terms ‘bharatmatrimony’ or ‘bharat matrimony’ in their ad titles, raising a clear presumption of confusion in the mind of the user. A prior Delhi High Court judgement that arrived at the same conclusion, however, did so by placing reliance on the earlier single judge order in the Make-MyTrip case. Considering that there is, in fact, a reasonable explanation for reconciling this seemingly confusing web of decisions, this judgement might introduce some stability in abiding with precedent after the DRS decision.