Google Ads and trademark infringement – BusinessLine

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Today, when Google has become synonymous with internet itself, advertising on Google Ads has become a preferred tool for increasing sales. However, there are several legal aspects that come hidden with using Google Ads as its primary source of lead generation. While there have been several disputes concerning Google Ads in the recent past alleging it of undertaking monopolistic practices or being discriminatory to companies, in a recent instance, Google Ads has been alleged of being a vehicle for trademark infringement by companies. 
In the most recent incident, it was found that in the struggle to become the “most searched website” or to land the greatest number of users, brands have been using unlawful and anti-competitive practices on Google Ads. This was something even the internet giant failed to fix before the battle went to court. 
It has been established over the years that brands need to steer clear of their competitors’ trademarks or other distinctive marks to avoid any kind of legal action. Google Ads strictly prohibits the use of such trademarks by other companies as it can create an array of confusion in identifying the original source of the business, thereby hampering the competitors’ growth as well as allowing the advertiser to use the competitor’s mark and reputation for his own benefit.  
Generally, in response to trademark complaints, Google Ads restricts the usage of trademarks in the ad copies. Only resellers, informational sites, related organizations, and authorized advertisers are allowed to use the trademarks, that too only if essential. 
In fact, to ensure that the platform is only promoting legitimate ads, Google provides that one can use Google’s own tool to submit trademark registrations that further ensures that no one is allowed to copy the proprietor’s distinctive mark, saving possible suits and infringement allegations. 
The most recent example of such an issue is the MakeMyTrip vs Booking.com trademark infringement case.  
In this case, it was said that whenever any user searched for ‘MakeMyTrip’ on Google, the first link to be shown was of www.booking.com.  
Upon review, it came to light that the latter had been using MakeMyTrip’s trademark for its own Google Ad promotions. Owing to MakeMyTrip’s prominent existence in the Indian travel-booking space, Booking.com, a Dutch online travel agency tried to gain quick and easy prominence in the country’s travel ecosystem.  
As a result, a lawsuit was filed under which Booking.com is now restrained from using the mark ‘MakeMyTrip’ altogether as a keyword in the Google Ads program till a further hearing. This not only puts monetary pressure on Booking.com to get out of the lawsuit but also hampers the company’s reputation in the market. This case will definitely set a strong precedent and deter other companies from using their ‘more famous’ counterpart’s trademarks or brand names for garnering user traction. 
Protecting one’s trademark is only one aspect of safeguarding the brand from a lawsuit under Google Ads. Considering the volume of business transactions and purchases happening on Google, Google has developed very strict advertising policies, covering four broad areas, which if not followed can again be brought to the light of critical legal action: prohibited content (ranging from sales of counterfeited goods to illegal activity like hacking devices), prohibited practices  
1) Prohibited Content: From promoting the sales of counterfeit goods to any product that can cause damage, harm, or injury to the users is not allowed on Google. Google prohibits companies from advertising for any kind of dishonest or illegal activity like hacking devices or any inappropriate content that focuses on offenses, discrimination, etc. Google reserves the right to block or take-down content or ads which contain what it deems to be “prohibited content”. 
2) Prohibited Practices: Google Ads does not permit advertising any content that abuses the ad network like cloaking the final destination. If, in any case, the advertiser tries to hamper the personal data of the user or in fact tries to collect irresponsible data like credit card info, sexual orientations, etc. in their ad content, then they are liable to be fined for it. 
3) Restricted Content and Features: This category covers content that can at times be considered sensitive. Using filters of age, Google tries to provide a safe ad experience for all users. Any content related to alcohol, sex, gambling, politics, healthcare and drugs, financial services, and other restricted businesses is put under review multiple times before it is allowed to be promoted in certain areas and groups only. 
4) Editorial and Technical: Ads that are clear, relevant, readable, easy to interact with, and professional in appearance are the only ones that make it to the cut. Any ad that doesn’t meet the destination requirement of the user is also removed from the list. Google ensures that any user clicking on an ad has a definite destination to go to so that they do not find themselves stuck in jeopardy. 
As the famous saying goes, “With great power comes great responsibility”, Google has a huge responsibility of safeguarding the millions of transactions that run through it on a daily basis. In the recent past, Google has realized that it can be held accountable for the manner in which its users advertise their products on the platform, even though they are merely an “intermediary platform”. This realization has definitely created a massive impact on the online ads scenario on Google, thereby critically impacting both the user’s/customers’ interests as well as that of businesses. 
It is quintessential for advertisers to note that while Google Ads can be extremely resourceful for your brand promotion, not abiding by its policies can land you in months of court hearings and legal procedures. Therefore, an informed and mindful decision would definitely be worth it before you plan to invest any capital in your product promotion. 
(The author is Managing Partner, Verum Legal, a law firm) 
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