Under the Trade Marks Act, 1999, MakeMyTrip argued that the keyword use was infringement or passing off. The court dismissed this contention.
Google Ads using the phrase “MakeMyTrip” was deemed “no deception at all” by the Supreme Court on Thursday, according to the online travel firm MakeMyTrip (MMT), regardless of the presence of links and adverts for Booking.com, a competitor travel business.
The court declined to consider MMT’s appeal against a December judgment of the Delhi high court. Despite MMT’s efforts to have the Delhi High Court’s decision from December heard, the court declined to do so (Sanjay Sharma). With Sanjay Sharma
According to the Court, MMT did not prove that the use of the keywords violated the Trade Marks Act, 1999 in any way. Using the Google Ads Program, Booking.com bought the top keyword, “MakeMyTrip,” so its website would appear at the top of search results for anybody using that phrase.
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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 travel to MMT will not be puzzled at all and land at Booking.com. This isn’t a situation where Booking.com is exploiting MMT’s trademark to accomplish its business. Second, there is no misunderstanding. If you wish to purchase a ticket at MMT you would never be puzzled by Booking.com,” the bench, also comprising justices JB Pardiwala and Manoj Misra said.
MMT appeared before the highest court challenging the HC ruling declaring that using keywords “MakeMyTrip” combined or with or without spaces, as a term on the Google Ads Program did not amount to infringement or passing off under the Trade Marks Act. By its interim judgment on December 14 last year, the high court authorized Google and Booking.com to utilize the disputed phrases, easing the restriction imposed by the single judge bench in April 2022.
Senior attorney Mukul Rohatgi, representing MMT, contended on Thursday that Booking.com is utilizing the brand name of MMT to carry out its business. He stated that the use of its trademarks as keywords amounted to taking advantage of the unique character and reputation of MMT by Booking.com, adding that is an infringement under the Trade Marks Act.
Disagreeing, the bench responded: “Where is the passing off? All that it implies is that you have an order of advertisements on Google. You are also displayed there. You are solely featured underneath the Booking.com. Where’s the violation or passing off? Booking.com is not passing off as Make My Trip.”
The court stated that it is not a situation where Booking.com is utilizing the trademark of MMT even as senior counsel Abhishek Manu Singhvi, standing for Google, maintained that there was no infringement or passing off as long MMT also shows up whenever the keywords are searched in.
“The keywords ‘MakeMyTrip’ is behind the screen after it is typed in. You get 20 results when you search these keywords. You may even be shown a boat or an aircraft. There is no uncertainty at all,” Singhvi added.
Concurring with him, the bench informed Rohatgi that the two websites are fundamentally distinct, despite the fact that the main matter is still ongoing 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 utilized by your competitor? These are clearly separate marks,” the court observed.
It urged MMT to go back to HC where its complaint for permanent injunction barring 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 awaiting final adjudication.
