On the issue of safe harbour and Google’s liability under Section 79 of the Information Technology Act (IT Act), the Court said that Google is not a passive intermediary when it comes to its Ads Programme.
Therefore, the benefit of safe harbour will not be available to the tech giant if it is found to be infringing on the trademarks, the Court observed.
“Prior to 2004, Google did not permit use of trademarks as keywords. However, Google amended its policy, obviously, for increasing its revenue. Subsequently, it introduced the tool, which actively searches the most effective terms including well known trademarks as keywords. It is verily believed that in the year 2009 Google estimated that use of trademarks as keywords would result in incremental revenue of at least US Dollar100 million. Google is not a passive intermediary but runs an advertisement business, of which it has pervasive control. Merely because the said business is run online and is dovetailed with its service as an intermediary, does not entitle Google to the benefit of Section 79(1) of the IT Act, in so far as the Ads Programme is concerned,” the Court explained.
The bench further said that the use of trademarks as keywords is analogous to using trademarks as meta-tags since both, in a sense, serve the same purpose.
“As noticed above, meta-tags serve as a tool for indexing the website by a search engine. Thus, if a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves the same purpose. It, essentially, in a manner of speaking, tags a link of an advertiser (sponsored link) with the keyword(s). The same are used as a device to catalogue the sponsored link. The fact that using a keyword may not necessarily lead to display of the advertiser’s link as a sponsored link on the SERP, pursuant to a search query that includes a keyword as a search term, makes little difference,” the Court opined.
Source: Barandbench
