Authors: Mr. Rishi Anand (Partner) and Deeksha Dubey (Associate).
- INTRODUCTION
1.1. At the heart of Hindware Ltd. v. Grohe India Pvt. Ltd. & Ors. is a question that goes beyond ordinary trademark infringement: can a search advertising platform monetise a registered trademark by allowing competitors to bid on it as a keyword? The dispute arose when Hindware Limited (“Hindware”) alleged that its mark HINDWARE was being used on Google Ads to divert users searching for Hindware-related terms to sponsored links of competing sanitaryware businesses. Hindware sued Grohe India Private Limited (“Grohe”) and, in a connected suit, Cera Sanitaryware Limited (“Cera”) along with its website developer Omkara Infoweb Private Limited (“Omkara Infoweb”). By the time the Delhi High Court delivered its judgment on May 22, 2026 (“Judgment”), Grohe, Cera and Omkara Infoweb had entered into settlements with Hindware, with decrees already passed against Grohe and Cera, while the settlement with Omkara Infoweb was dealt with separately. What remained for adjudication, after evidence and cross-examination, was Google’s role in the keyword advertising ecosystem. The surviving controversy was not limited to whether individual advertisers had bid on Hindware’s mark, but whether Google LLC and Google India Private Limited (“Google”) could claim the protection accorded to passive intermediaries when their own advertising system enabled and suggested the keyword, auctioned its use, and ranked and monetised the advertisements triggered by it. The Court declined to treat Google LLC and Google India as disconnected entities, noting that Google LLC maintained the AdWords programme while Google India entered into AdWords agreements with Indian advertisers. It ultimately granted a permanent injunction against Google LLC and Google India, awarded nominal damages of INR 30 lakh, and directed payment of actual costs. The significance of the Judgment lies in the reasoning that led to this relief. In examining infringement under Section 29(8) of the Trade Marks Act, 1999 (“Trade Marks Act”) and intermediary protection under Section 79 of the Information Technology Act, 2000 (“IT Act”), the Court shifted the enquiry from the visible advertisement alone to the invisible commercial machinery that determines when, why, and to whom an advertisement is shown.
2. The Technology Layer: How Google Ads Actually Works
2.1 A significant part of the Court’s reasoning rests on a close examination of how Google Ads, formerly AdWords, operates, an examination shaped substantially by the cross-examination of Google’s own witness. For readers unfamiliar with the mechanics of search advertising, it is therefore useful to first understand how the programme functions in practical terms. In simple terms, when a user types a search query such as “Hindware sanitaryware”, the query is not merely a request for information. In the advertising ecosystem, it becomes a signal of commercial intent: it tells the platform that a user interested in that brand or product category is available to be targeted. Advertisers can target such users by selecting backend “keywords”, which are not visible to the consumer but determine when an advertisement becomes eligible to appear.
2.2 Once the search query matches the selected keyword, the advertisement does not automatically appear. It enters a paid auction in which multiple advertisers may compete for the same keyword. Google then determines, through its software and algorithms, which advertisement will be shown and in what position, taking into account the bid amount, quality of the advertisement, relevance of the landing page and other related parameters. Only after this process does the user see the visible advertisement, the AdText, comprising the title, description and link on the search results page. If the user clicks on the advertisement, they are taken to the advertiser’s own website. However, Google’s revenue is generated through this very click-based model because the advertiser pays when the user clicks the sponsored result. Against this technological backdrop, the trademark is not being used like a label affixed to goods. It is being used as a hidden trigger inside a paid advertising system that captures, prices and redirects consumer attention. This is why the dispute cannot be adequately explained through physical-world analogies such as billboards or shelf placement. The real question is whether a platform can monetise a consumer’s search for one brand by selling that search moment to another advertiser.
3. The Court’s Legal Pivot: From Consumer Confusion to Advertising Function
3.1 Conventional trademark infringement analysis asks whether the consumer is likely to be confused about source, origin, or affiliation. The Judgment is significant because the Court’s reasoning is not confined to the traditional enquiry of visible consumer confusion. It also foregrounds the advertising function of the mark, recognising that infringement may arise where the mark is used as a trigger to attract consumer attention, even if it is not displayed in the final advertisement. The Court held that a trademark performs an investment function (building and preserving goodwill) and an advertising function (attracting and retaining consumers). Section 29(8) of the Trade Marks Act, which renders a registered mark infringed by any advertising that takes unfair advantage of it, is detrimental to its distinctive character, or is against its reputation, was held to protect precisely these extended functions, and critically, without requiring proof of likelihood of confusion.
3.2 A central aspect of the Court’s reasoning was its construction of the term “advertising” under Section 29(8) of the Trade Marks Act. The Court did not treat advertising as limited to the final advertisement visible to the consumer. Instead, it read the term as covering the full promotional process by which an advertisement is triggered, selected and displayed. On this reading, using a trademark as a backend keyword can amount to use of the mark in advertising for the purposes of Section 29. In the facts of the case, the Court treated such use as infringing under Section 29(8), since Google’s conduct was found to take unfair advantage of HINDWARE and to be contrary to honest commercial practices. This is the doctrinal strength of the judgment: trademark harm can occur before the consumer ever sees an advertisement, because the platform has already deployed the mark as an attention-capturing trigger. At the same time, this reasoning must be applied with caution. A broad reading may blur the line between unlawful appropriation of a trademark and legitimate competitive advertising.
4. The “Invisible Use” Problem: Can a Backend Keyword Be Trademark Use?
4.1 This is the most conceptually contested part of the judgment. Google’s position, recorded extensively in its submissions, was that a backend keyword is invisible, not affixed to goods, and not used in AdText, and should therefore fall outside trademark “use” in any traditional sense. Hindware’s answer, which the Court accepted, was that invisibility does not equate to legality. A keyword may never be seen, but it performs a determinative commercial function: it decides whether and when an advertisement appears, converting the brand owner’s goodwill into a targeting opportunity sold to competitors without consent. The key question is not whether the consumer sees the trademark, but whether the defendant commercially deploys the trademark to influence what the consumer sees.
4.2 This formulation captures why backend keyword use is difficult terrain for trademark law. The Trade Marks Act was not drafted with algorithmic advertising in mind. Its traditional categories, such as affixing a mark, using it on packaging, business papers or visible advertisements, do not map neatly onto search advertising. The Court bridged this gap by construing “in advertising” under Section 29(6)(d) as a process rather than merely an end-product, thereby bringing backend keyword use within the statutory understanding of use in advertising. Its conclusion is most persuasive on the facts before it: HINDWARE was a coined word with no dictionary meaning, and a registered, well-known mark, used by a direct competitor to intercept brand-specific search intent. The Court also rejected Google’s attempt to bring such use within the fair use, descriptive use, or nominative use protections under Sections 30 and Section 35 of the Trade Marks Act, holding that HINDWARE was not being used to describe the character or quality of goods, or to identify Hindware’s own products. The broader commercial-speech defence was also insufficient once the advertising mechanism itself was found to take unfair advantage of the mark. At the same time, a blanket rule that every backend keyword use amounts to infringement would be difficult to justify, since consumers often search for brand names to compare products, read reviews, locate resellers, or explore alternatives. The judgment correctly identifies the commercial reality of invisible digital use but leaves open the harder question of when such use crosses from legitimate targeting into unlawful appropriation.
5. Platform Liability: Is Google a Neutral Intermediary or an Ad-Tech Actor?
5.1 This is arguably one of the most consequential aspects of the judgment. Google argued that it merely provides an advertising interface; the advertiser chooses the keyword, writes the AdText, and owns the landing page, while Google plays a “content-neutral” role entitled to safe harbour as an intermediary under Section 79 of the IT Act, read with the due-diligence framework under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”). It also argued that its Keyword Planner Tool, an optional research aid, does not disturb that safe harbour, since advertisers are free to use any keyword regardless of the tool’s suggestions.
5.2 The Court rejected this defence. It held that the exemption under Section 79(1) of the IT Act is confined to hosting or making available third-party information, data or a communication link, and does not extend to other conduct of the intermediary. Conducting a real-time auction and selling the use of the plaintiff’s trademark to direct competitors falls outside that narrow protective core. Trademarks are commercial property; by auctioning the keyword and enabling a competitor to exploit it, Google was found to have “seized and sold” the trademark owner’s property without any contractual or statutory authorisation to do so. The doctrinal distinction that the Court draws is between hosting and ad-tech optimisation. A passive host stores or transmits third-party content; an ad-tech actor structures commercial visibility through auction mechanics, Quality Score, and a payment model from which it profits on every click. The Court relied on this distinction to hold that Google could not be treated as a passive intermediary.
5.3 The Court also examined Google’s eligibility for safe harbour under Section 79(2)(b) of the IT Act. It reasoned that Google’s advertising system was designed to transmit advertisements to a defined class of users, namely, users searching for the relevant trademark. On this basis, the Court held that Google could not satisfy the requirement that it does not “select the receiver of the transmission.” This is one of the more expansive aspects of the judgment, since it treats algorithmic targeting of a user class as relevant to the safe-harbour analysis. The Court further held that Google failed to meet the due-diligence requirement under Rule 3(1)(b)(iv) of the IT Rules, which requires an intermediary to take reasonable steps to prevent users from hosting, transmitting, or sharing content that infringes trademark or other proprietary rights. A framework that permits, and does not investigate, the use of registered trademarks as keywords by direct competitors was therefore found insufficient. The implication of this reasoning extends beyond search advertising. Many digital platforms today rely on ranking, bidding, recommendation, and optimisation tools, including e-commerce marketplaces, social-media advertising systems, app stores and AI-driven ad networks. If the mere use of such algorithmic features were enough to deny safe harbour, intermediary protection in India could narrow considerably. The better reading of the judgment is narrower: liability should not turn on algorithmic ranking by itself, but on whether the platform is merely facilitating third-party content or is using its own monetised targeting system to commercially exploit a protected mark.
6. The Need for Limiting Principles in Keyword Advertising
6.1 Here, the judgment invites its strongest critique. After holding that Section 29(8) of the Trade Marks Act protects the advertising function of a mark, the Court also observed that the provision does not distinguish between permissible and impermissible free-riding, and that the objective of promoting competition cannot justify auctioning a trademark without the owner’s consent. This is a wide statement. It becomes slightly difficult to reconcile with the Court’s own repeated emphasis on the special character of the mark HINDWARE, particularly that it was coined, distinctive, well-known, and had no dictionary meaning. If this reasoning is read too broadly, brand owners may rely on the judgment to argue that competitors should be prevented from bidding on any registered trademark, irrespective of the nature of the mark, the relationship between the parties, or the clarity of the advertisement ultimately shown to the user. Such a reading would go beyond the facts of Hindware and may not be commercially desirable. The better approach would be to apply the judgment with certain limiting principles drawn from the Court’s own reasoning.
6.2 First, the nature of the mark should matter. The Court placed considerable weight on HINDWARE being a coined and well-known mark, which makes the case stronger than one involving descriptive or generic terms. Second, the relationship between the parties is relevant. The concern of diversion is sharper where the keyword is used by a direct competitor operating in the same product market. Third, the clarity of the AdText and landing page should continue to matter. A clearly labelled advertisement that does not suggest association with the trademark owner may stand on a different footing from one that creates ambiguity. Finally, courts should look for evidence of actual commercial impact, such as cost-per-click inflation, Quality Score disparity, duration of bidding, scale of the campaign, or material showing diversion of brand-specific traffic.
6.3 The law must therefore draw a careful line. It should not prevent consumers from being shown genuine alternatives, comparisons, or competing products. At the same time, it should not permit a platform or competitor to sell a rival’s brand equity as the entry point to those alternatives.
7. Conclusion: The Real Impact of Hindware
7.1 The judgment’s significance lies in its recognition that trademark harm in the digital economy may arise not only from what the consumer ultimately sees, but also from the advertising architecture that determines what is shown to the consumer in the first place. By examining keyword auctions, Quality Score, cost-per-click pricing and Google’s role in the advertising process, the Court treated search advertising as more than a neutral technical service. It viewed it as a commercial system capable of monetising the goodwill attached to a trademark. At the same time, the judgment’s broader language requires careful application. The finding that Section 29(8) of the Trade Marks Act does not distinguish between permissible and impermissible free-riding may be persuasive on the facts of Hindware, where the mark was coined, well-known and used by direct competitors through a paid advertising system. However, applied too broadly, the same reasoning could affect legitimate comparative advertising, market alternatives and consumer choice.
7.2 The real question after the Judgment is therefore not only whether a trademark can be used as a keyword, but who should control the commercial value created when a consumer searches for a brand. The judgment opens the door for courts to look beyond the visible advertisement and examine the system that captures and monetises consumer attention. The harder task ahead will be to ensure that trademark law protects brand goodwill without turning every search for a brand into territory reserved only for the trademark owner.