Policybazaar Insurance Web Aggregator & Anr. V/S Coverfox Insurance Broking Pvt. Ltd. & Ors. [Cs(Comm) 259/2019]
The Delhi High Court has held that mere use of registered trademark “Policy Bazar” as a keyword by ACKO may not always constitute trademark infringement.
The plaintiffs in this case, holders of trademarks “Policy Bazaar,” “PolicyBazaar,” and “Policy Bazar,” filed a lawsuit against the defendants, alleging that the defendants were using identical or deceptively similar trademarks as keywords in the Google AdWords Program. The primary contention of the plaintiffs was that such use constituted trademark infringement and passing off.
The court’s decision centered on whether the use of these trademarks as keywords could be considered a “use of a trademark” under Section 29(1) of the relevant trademark act. The court held that keywords in online advertising do not serve the primary function of identifying the source of goods or services. Consequently, Section 29(1) of the act, which pertains to trademark infringement, was deemed inapplicable in this context.
The court also considered the perspective of an internet user. It emphasized that individuals using search engines are generally aware of how these engines function and the nature of the results they display. From this perspective, the court reasoned that using a trademark as a keyword alone does not necessarily result in confusion among users who understand the workings of search engines. In other words, the mere use of a trademark as a keyword does not automatically lead to consumer confusion.
While the plaintiffs argued that the use of their trademarks as keywords increased the cost of their advertisements and potentially led to additional hits on the defendant’s website, the court did not find these factors sufficient to establish trademark infringement or passing off. In essence, the court held that these consequences, while potentially detrimental to the plaintiffs, did not amount to legal wrongdoing on the part of the defendants.
It emphasizes the need to carefully consider the functionality and user perspective in such cases. While trademark holders may have legitimate concerns about their brand’s online presence, the mere use of trademarks as keywords may not always constitute trademark infringement or passing off, as demonstrated by the court’s decision.