The Supreme Court told the online travel agency MakeMyTrip (MMT) on Thursday that the use of the keyword “MakeMyTrip” in Google Ads was “no deception at all,” even if the search results show links and advertisements for rival travel company Booking.com.
The Court rejected MMT’s argument that the keyword usage amounted to infringement or passing off under the Trade Marks Act, 1999. Booking.com made the highest bid and purchased the “MakeMyTrip” keyword on the Google Ads Program, which means that anyone searching for the term would see its site on top of their search results.
Refusing to entertain MMT’s appeal against a December order of the Delhi high court, a bench headed by Chief Justice of India Dhananjaya Y Chandrachud observed that using the keyword cannot amount to infringement or passing off because MMT and Booking.com are two completely distinct online platforms.
“There’s no deception at all. Somebody who wants to go to MMT will not be confused at all and land at Booking.com. This isn’t a case where Booking.com is using MMT’s trademark to do its business. Second, there is no confusion. If you want to book a ticket at MMT you will never be confused by Booking.com,” the bench, also comprising justices JB Pardiwala and Manoj Misra said.
MMT was before the top court against the HC order holding that using keywords “MakeMyTrip” together or with or without spaces, as a keyword on the Google Ads Program did not amount to infringement or passing off under the Trade Marks Act. By its interim order on December 14 last year, the high court allowed Google and Booking.com to use the impugned keywords, lifting the restraint imposed by its single judge bench in April 2022.
{{/usCountry}}MMT was before the top court against the HC order holding that using keywords “MakeMyTrip” together or with or without spaces, as a keyword on the Google Ads Program did not amount to infringement or passing off under the Trade Marks Act. By its interim order on December 14 last year, the high court allowed Google and Booking.com to use the impugned keywords, lifting the restraint imposed by its single judge bench in April 2022.
{{/usCountry}}Senior advocate Mukul Rohatgi, representing MMT, argued on Thursday that Booking.com is using the trademark name of MMT to carry out its business. He added that the use of its trademarks as keywords amounts to taking advantage of the distinctive character and reputation of MMT by Booking.com, adding it is a breach under the Trade Marks Act.
Disagreeing, the bench responded: “Where is the passing off? All that it means is that you have an order of advertisers on Google. You are also shown there. You are only shown below the Booking.com. Where’s the infringement or passing off? Booking.com is not passing off as Make My Trip.”
The court added that it is not a case where Booking.com is using the trademark of MMT even as senior counsel Abhishek Manu Singhvi, appearing for Google, contended that there was no infringement or passing off as long MMT also comes up whenever the keywords are typed in.
“The keywords ‘MakeMyTrip’ is behind the screen after it is typed in. You get 20 results when you type these keywords. You may even be shown a boat or a plane. There is no confusion at all,” Singhvi added.
Concurring with him, the bench told Rohatgi that the two websites are completely different, besides the fact that the main case is still pending before the single judge bench of the Delhi HC. “Even on merits, where is the case of infringement or passing off? Where is your mark being used by your competitor? These are completely distinguished marks,” the court observed.
It asked MMT to go back to HC where its suit for permanent injunction restraining Google and Booking.com from infringement of its trademarks, passing off, dilution of goodwill, unfair competition and rendition of accounts of profits or damages was still pending final adjudication.