The Supreme Court on Thursday dismissed a plea by online travel booking portal MakeMyTrip which had alleged that its trademark was being infringed by Booking.com through Google Ads program.
The online travel booking portal moved the Supreme Court arguing that because of the Google Ads program, search results for MakeMyTrip would throw up sponsored links to Booking.com, a direct competitor.
Nonetheless, a bench of Chief Justice of India (CJI) DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra expressed reservations over whether any case for trademark infringement could be made out since there was no scope of confusion between the services offered by MakeMyTrip and Booking.com.
The Chief Justice stated that there is no possibility of any confusion. He questioned that if anyone wants to work on MakeMyTrip, then why will they log into Booking.com. He added that this is not an issue which is res integra. Dismissing the plea, the CJI DY Chandrachud noted that Booking.com and Google Ads are not using their mark as well.
Senior Advocate Mukul Rohatgi and Senior Advocate Gaurav Pachnanda represented MakeMyTrip. Senior Advocates Abhishek Manu Singhvi and Harish Salve appeared for Google.
MakeMyTrip’s plea challenged a Delhi High Court division bench order from December last year. Booking.com had made the highest bid and purchased the MakeMyTrip keyword on the Google Ads Program. Consecutively, MakeMyTrip pointed out that Google search results for MakeMyTrip as a keyword would display sponsored links to Booking.com which is a direct competitor.
Furthermore, MakeMyTrip objected to its business being so diverted to a competitor through the use of such sponsored links. MakeMyTrip further argued that Google is paid by the advertiser, Booking.com in this case, every time an internet-user clicks on such a sponsored link.
A division bench of the Delhi High Court in December 2023, had held that the use of the MakeMyTrip trademark on the Google Ads program would not amount to infringement or passing off under the Trade Marks Act, 1999.
In the apex court, MakeMyTrip not only questioned the correctness of the division bench order but also objected to such a division bench order being passed on an appeal by Google against a single-judge ad interim order. Earlier, the single-judge had granted an injunction in favour of MakeMyTrip.
During the hearing today, the Supreme Court bench briefly questioned how a case for passing-off of trademark would arise in the present case and why MakeMyTrip was challenging an interim order.
Senior Advocate Rohatgi replied that it is not ad interim order and the matter has been disposed of. He noted that both orders from the High Court are 30-40 pages. This is not the Bombay type, he concluded.
Eventually, the Supreme Court dismissed the plea. The bench clarified that such dismissal would not affect further hearing before the single-judge.