In early 2026, Justice Mini Pushkarna of the Delhi High Court decided Hindware Ltd. v. Google LLC & Ors. CS(COMM) 591/2017, decided May 22, 2026. The court permanently restrained Google from using the Hindware trademark as a keyword and awarded 30 lakhs in nominal damages. For over a decade, online advertising platforms structured their legal defence around a simple axiom. If an algorithmic process is hidden from the consumer’s eye, it cannot legally constitute a trademark violation.
Deconstructing section 29(6)(d) of the Trade Mark Act,1999.
The core of the dispute was primarily based on the literal interpretation of section 29(6)(d), which defines exactly what constitutes the ‘use’ of registered marks as infringement action under this provision. A person is considered to use a registered mark if they use it on business paper or in advertising. Google’s narrow interpretation treated the phrase as a static noun(in an advertisement), which requires any visible presence on screen to cause consumer confusion. However, the court analyzed this provision and interpreted it as an active verb, representing a distinct and observable layer of digital process which encompasses backend bidding, algorithmic matching and code-based targeting. The court rejected this defence by focusing on the legislative choice of language and intent. The court observed that the parliament deliberately employed the word “advertising” instead of the word “advertisement,” which shows a continuous gerund acting as a verb form rather than a noun. Google or social media platforms like Meta can be held liable for trademark infringement even if they do not manufacture sanitaryware and are not a direct competitor and never visibly display the trademark on their own products. This marks a shift from a neutral facilitator or an Internet intermediary to an active participant in suggesting and auctioning keywords of the competing brands. Even if Google is not a direct competitor, it raises significant questions of unfair advantage and commercial morality under Section 29(8) of the Trade Mark Act, 1999.
Why is the comparison to a brick-and-mortar analogy not applicable here?
For instance, consider a brick-and-mortar analogy: if I go to a grocery store and ask for an Oral-B toothbrush, the shopkeeper might intercept my request and offer me a Colgate toothbrush only after I decline, then hand me the Oral-B toothbrush. In the particular judgment, Google actually tried to use a similar analogy to prove they were not infringing. The court rejected the analogy for digital keyword bidding by reasoning that typing a highly specific coined trademark into a search engine is not akin to walking into a general grocery store: it is equivalent to a consumer walking into an exclusive Oral-B brand outlet, the shopkeeper would never auction off the floor space to Colgate. By transitioning this physical-world metaphor into digital real estate, the court firmly aligned its logic with the division bench precedent in Google LLC v. DRS Logistic (P) Ltd. Delhi HIgh Court), FAO(OS)(COMM) 2/2022 Dated: 10 August, 2023, which established that keyword use can constitute ‘use in advertising’ under the Trade Marks Act,1999, while also noting that infringement is not automatic and depends on whether confusion, dilution, or unfair advantage is established. It was precisely on this last ground, “unfair advantage”, in this case also, where the court found Google liable in respect of a coined, distinctive mark like Hindware. More importantly, by distinguishing a coined, invented mark like Hindware from the descriptive trade terms. Here, the court established a critical boundary: a coined mark triggers source-specific consumer intent in a way that a descriptive term does not. Auctioning such a mark is not permissible comparative advertising. It is a point-blank interception of source-specific intent. By allowing rivals to place their ads, which intercept that exact question, the platform is not displaying an alternative billboard. Rather, it is actively modifying the plaintiff’s hard-earned goodwill. The algorithm essentially strips the trademark of its digital legal status as a protected token of origin and presents it as a high-value bid to trigger a lucrative bidding war. Doctrinally, this takes the platform’s conduct far beyond the permissible comparative advertising and straight into free-rider benefit under Section 29(8) of the Trade Marks Act, 1999. It exposes a predatory reality of the digital ecosystem: The platform in itself forces the creators to pay “brand tax”, compelling them to continuously spend massive ad budgets to buy back their own corporate name just to protect the traffic they already have earned.
Why Google’s Algorithmic Participation disqualifies it from Section 79 of the IT Act
Google’s primary defender relied upon section 79 of the IT Act, 2000, which grants safe harbour to intermediaries acting as passive conduits. However the High Court ruling creates a legal doctrinal paradox for Digital platforms if backend algorithmic matching constitutes an active “use in advertising” Under section 29(6)(d) of Trade Marks Act, 1999, a Platform logically cannot claim to be neutral or a mere passive observer under the IT Act to qualify the safe harbour under section 79, Intermediary must not initiate the transaction or select the receiver of the information. The court audited the mechanics of Google’s keyword planner tool and found it fundamentally non-passive. The algorithm does not merely sit idle waiting for 3rd parties to input generic terms, but it actively crawls such data and suggests a highly sought-after coined trademark to direct competitors to maximize ad relevance by actively promoting a competitor to bid on rivals’ trademark property. This logic draws a direct lineage from the Delhi High Court’s 2018 decision in Christian Louboutin v. Nakul Bajaj, CS (COMM) 344/2018, I.As. 19124/2014, 20912/2014, 23749/2014, Date of decision :2nd November, 2018, which established that a platform actively participating in promotion or curation of third-party content forfeits its section 79 immunity.
The platform transitioned from a neutral bulletin board into an active instigator of trademark infringement, especially through the monetization policy. The last and ending nail in the Safe Harbour Coffin is the financial architecture of the keyword auction. Google does not charge a flat fee for selling digital billboard space under the pay-per-click model. The platform generates revenue strictly when the consumer clicks the sponsored link and is diverted away from the trademark owners and the customer’s intended destination. The platform’s financial benefit is being calculatively diverted towards some intentional Source-specific intermediary proprietary, where the algorithm optimizes for revenue by deliberately influencing someone’s intellectual property. It is no longer hosting content. It is operating as a joint tortfeasor in the commercial exploitation of the competing brands. The groundwork for stripping this immunity was firmly laid in the division bench ruling of Google LLC v. DRS Logistic (P) Ltd. Delhi HIgh Court), FAO(OS)(COMM) 2/2022 Dated: 10 August, 2023. The court explicitly denied Google the section 79 safe harbour ruling that its active promotion of trademark via the keyword planner tool was incompatible with the legal definition of a passive intermediary.
Section 29(8)(a): It goes beyond consumer confusion and cuts off Big Tech’s safety net
Once backend algorithmic matching was established as an active use under section 29(6)(d), the legal inquiry shifted towards the liability threshold of section 29(8)(a). The provision cuts off big tech’s favourite safety net: the lack of consumer confusion at the point of sale. Section 29(8)(a) operates entirely independently of section 29(2). It does not require proof of deception. It acts strictly as an anti-free-riding provision designed to protect a brand’s advertising and Investment functions. The platform’s financial enrichment mathematically forces legitimate trademark owners to continuously spend massive advertising budgets to bid on their own names simply to prevent their search traffic from being systematically diverted by competitors. The court’s reasoning is straightforward: When an algorithm is specially engineered to identify a registered trademark, present it to a rival as a bidding opportunity, and then profit from every click that results, calling that process neutral is a legal fiction. The platform loses its intermediary immunity not only because of what it displays, but also because of what code is designed to do. The algorithm in this case is the advertising, and the platform is the advertiser.
The End of the intermediary fiction
Recently, the Calcutta High Court’s decision in Indiamart Inter Mesh Ltd. v. Open AI Inc., 2026 SCC OnLine Cal 5738, decided on 20-5-2026. Justice Kapur observed that ChatGPT functions as an “originator” under section 2(1)(za) of the IT Act, 2000, and not as an intermediary under section 2(1)(W). This classification, in itself, can Strip Large language models of the safe harbour protection that the traditional Tech platforms have been relying upon for decades. This distinction of originator versus Intermediary becomes important because it shows a shift in how courts are thinking about AI liability. There is a difference between a search engine, which directs you towards something which already exists, and a generative AI platform, which constructs a response from scratch, and if that response reproduces, appropriates, or displaces protected intellectual property, then liability shifts from ‘did you enable this? to did you originate this?’ and those are not the same question. It shows how Indian courts are systematically narrowing the gap between what a platform code does commercially and how it can be held responsible for infringements done by AI algorithms. Whether it is Google’s auctioning a coined mark or generating content that displaces the right holder. Now, the argument that my algorithm did it is running out of road. The question here is not about whether a human pressed a button; it is whether the code was built to profit from someone else’s brand equity. If the answer is yes, the intermediary fiction ends here.
Author Bio
