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Rakshana MK – Associate, IP Practice

Let’s think of a scenario, you’ve planned to go on a trip with your friends but confused about the destination. What would you do? A “this gen” individual would immediately look up on the web which would suggest destinations which can be filtered based on various factors such as the budget, climate, anything and everything based on the individual’s preferences and choices. Once the destination is finalized, you would like to engage an agency for your basic needs of travel such as stay, transport, etc. Just as I referred earlier, the web and search engines come to your rescue.

But throughout this process have you ever wondered how these search engines work to present the results before you? This piece of writing brings to you the understanding of what a Meta Tag is, how is it related to and what’s its role in trademark infringement, based on an important and a landmark judgement.

Let’s get a little technical now, what’s a Meta Tag? In layman terms Meta Tag is a part of the code of a website that contains information about a particular website or a webpage. Now we arrive at a lot of questions such as what kind of information does the tag contain, where can this information be found, how is it related to the search results that the engines arrive at, etc.

Meta Tag can be anything and everything that indicates or describes the website. It can be a description of the page, the name of the people involved in the website (authors, creators, etc.), title of the page, brand name, etc. It is pertinent to mention here that this tag can be found or read only at the website code page and isn’t visible at any part of the website. Let’s understand the concept of Meta Tags with an example:


From the above snippet it can be understood that I have initiated a search in the particular engine for the term GOLD WINNER, which leads me to its website.


The website to which I have been directed to, from where I can find information about the brand or purchase the particular product does not display any information about the meta tag used. Whereas a search in its code displays the meta tag or strain programmed for the users to arrive at the search result.


From the last line of the code mentioned above, the Meta Tag, i.e., the keyword for the users to arrive at the website on the search results page can be identified. In the instant case, it is the brand name/ keyword GOLD WINNER.

Apart from codes, certain search engines also have programs where a particular keyword shall be bid upon by the website owners to project their website/ webpage in the search results. One classic example for such programs is the Google AdWords Program, which is also a means of advertising one’s brand and obtaining maximum traction to a site.

These Meta Tags/ keywords are used by search engines to improve search optimization and provide the users with the desired and accurate results. Now, let me give you another scenario. What if you own a brand ‘A’ and me, being your competitor use your brand name ‘A’ in my code as a Meta Tag or a keyword, owing to which my website also appears on the search result when a consumer looks for your brand or website? This is where conflict arises and here, we arrive at the question of whether a trademark infringement has taken place or not.

DRS Logistics Pvt. Ltd & Others vs Google India Pvt Ltd & Others[iv]:

The Plaintiffs had initiated the present suit after noticing that a search in the engine for the term “AGARWAL PACKERS & MOVERS” reflected various third party advertisements and websites including those of parties against whom a decree has been passed. The prayer of the suit included an injunction against the Defendant from using or permitting third parties to use AGARWAL , AGGARWAL PACKERS & MOVERS, DRS LOGISTICS or any other trade mark or name similar to the Plaintiffs’ registered trademarks as a key word or as a meta tag, restraining from permitting third parties from advertising the Plaintiff’s trademarks in any combination on its website and removing all references on its sponsored links to third party websites, when the trademarks of the Plaintiff are used in any combinations in the search engine of the Defendant website.

The Plaintiff’s contentions were that, such invisible use of the Plaintiff’s trademark by third parties lead to confusion regarding the source or origin of the services that were being offered by the Plaintiff and the third party competitor companies in the minds of the public who avail such services and the consumers. Such act also caused diversion of the web traffic pulling more traction to the competitor companies from the Plaintiff’s website, which was an undue advantage on the third party websites and had an effect on the Plaintiff.

The Defendant’s stand in the instant case was that the incorporation of a term as a part of the keyword does not constitute to trademark infringement as it cannot be counted as “use” of the particular trademark and it also attempted to show difference between a Meta Tag and a Keyword. The Defendant ultimately claimed that it has no responsibility whatsoever and tried to pull itself under the purview of Section 79[2] of the IT Act of 2000[v].

The issues in the present case included:

  1. Does the use of the trademark as a keyword amount to infringement or passing off?
  2. Can the Defendant claim or be made a party under the safe harbor provision?

As far as the first issue is concerned, the Court was of the opinion that since users were being diverted to or the advertisement of the third parties were being displayed as a part of the search result, the grievance of the Plaintiff was legit. With regards to the second issue, the Court completely rejected the Defendant’s claim in relation to being an intermediary through which it negates any kind of responsibility. The Court opined that the Defendant is not entitled to the claim itself to be an intermediary under Section 79 of the IT Act because it actively participates in promoting and facilitating the use of trademarks as keywords by its advertisers and has monetary and business benefits from such use.

The Court ordered that the Defendant ought to investigate complaints made by the plaintiff regarding the use of its trademarks as keywords, review the overall effect of an advertisement to determine whether it results in infringement or passing off of the plaintiff’s trademark and if such investigation reveals that the use of the plaintiff’s trademark as a keyword or the overall effect of the ad results in infringement or passing off, then has directed that the Defendants  must remove such advertisements. Following this, the Defendant had preferred an appeal in which the order of the single bench was upheld.

From my perspective, this judgement is significant owing to the fact that it is one of the earliest cases dealing with the rights of a proprietor in the case of a Meta/ Keyword space, which has the potential to influence consumer decisions in the e-commerce world. Secondly, the Court had clearly elucidated how the search engine does not fall under the scope of Section 79 of the IT Act and thirdly it has drawn a difference between the Indian and the International viewpoint and jurisdiction. Another aspect that still lacks clarity for which we will have to look at what the judiciary opines in the upcoming conflicts is the difference between Meta Tag and Keyword and what significance does such difference have in deciding infringement of a trademark. Concluding by stating that, with the technological advancements that we’re witnessing in the recent times, this judgement is a landmark one which is already acting as a precedent in various cases including the Makemytrip India Vs. Booking.Com[vi] and the same is important because it has commented on and preferred to highlight the fact that internet platforms and search engines have a role and responsibility in protecting and preventing acts contributing to infringement or unauthorized usages of intellectual properties.

[i] Source: www.google.com Search Result

[ii] https://kaleesuwari.com/product/gold-winner-1l-pouch

[iii] Source: www.google.com Search Result

[iv] DRS Logistics (P) Ltd. and Ors. vs. Google India Pvt. Ltd. and Ors. [MANU/DE/2920/2021]

[v] The provisions of sub-section (1) shall apply if-

(a)the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b)the intermediary does not-

(i)initiate the transmission,

(ii)select the receiver of the transmission, and

(iii)select or modify the information contained in the transmission;

(c)the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

[vi] Makemytrip India Private Limited vs. Booking.com B.V. and Ors. [MANU/DE/1512/2022]

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