Introduction

The rise of search engines has transformed how consumers discover products, making keyword advertising one of the most influential tools of digital marketing. Advertisers bid on search terms to trigger sponsored results, raising a fundamental trademark question: can a trader lawfully use a competitor’s registered trademark as an invisible keyword to attract online traffic?

In Hindware Ltd. v. Grohe India Pvt. Ltd. & Ors. (reported in 2026 SCC OnLine Del 3913) (“Hindware v. Grohe India & Ors”), the Delhi High Court held that the invisible use of a registered trademark as a Google Ads keyword constitutes “use in advertising” under the Trade Marks Act, 1999. The Court further held that Google’s active role in the keyword advertising ecosystem deprived it of intermediary safe harbour under the Information Technology Act, 2000. By restraining the use of the mark “HINDWARE” as an advertising keyword, the judgment significantly expands the understanding of trademark “use” and platform liability in the digital advertising economy.

Keyword Advertising: The Invisible Architecture of Digital Competition

Keyword advertising operates through a real-time auction in which advertisers bid on keywords that trigger sponsored ads when users enter matching search terms. These keywords are typically invisible to consumers, functioning only within the platform’s backend. For example, a search for “Hindware sanitaryware” may display competitors’ ads if they have bid on “HINDWARE”. Google has long argued that such invisible use is not trademark “use” because consumers never see the mark. The trademark owners, however, contend that the keyword exploits their goodwill by diverting consumer attention at the moment of purchase intent. The central legal question is whether trademark law should remain tied to visible use, or be extended to functional and economic exploitation in digital markets.

The Hindware Dispute: From Competitive Advertising to Platform Liability

The dispute arose when Hindware discovered that competitors, including Grohe India and CERA Sanitaryware, had purchased its registered mark as a Google Ads keyword. As a result, users searching specifically for Hindware were shown sponsored advertisements of competing brands.

Although Hindware eventually settled with the advertisers, it continued proceedings against Google. This strategic shift transformed the litigation from a conventional infringement dispute into a broader inquiry into platform liability and the legal character of search engine advertising systems.

Google’s defence was threefold. First, it argued that advertisers independently selected keywords, and therefore any infringing act was attributable solely to them. Second, it asserted that keywords are invisible and function merely as neutral technical parameters. Third, it invoked intermediary immunity under Section 79 of the Information Technology Act, 2000.

The Court rejected each of these contentions in strong terms, holding that Google’s role extended well beyond passive facilitation.

Invisible Keywords as “Use”: A Functional Interpretation of Trademark Law

The Court’s most significant doctrinal move lies in its interpretation of “use” under Section 29(6) of the Trade Marks Act. Rejecting Google’s submission that visibility is a prerequisite for infringement, the Court adopted a purposive and economically grounded interpretation.

It held that “use in advertising” cannot be confined to visible reproduction of a mark. Rather, it includes technological mechanisms through which a mark is employed to trigger commercial advantage. The Court emphasised that digital commerce operates through algorithmic processes that influence consumer behaviour without direct perceptual engagement with the trademark.

From this perspective, a keyword performs several economically salient functions: it diverts internet traffic, influences purchasing decisions at the moment of search intent, and monetises the goodwill associated with the mark. These effects persist irrespective of whether the consumer ever sees the keyword itself.

The Court therefore concluded that invisible keyword bidding constitutes “use” because it exploits the distinctive character and reputation of the registered mark. This reasoning marks a departure from traditional formalism and aligns trademark analysis with functional economic impact.

Google’s Role: From Neutral Intermediary to Active Participant

A second critical aspect of the judgment concerns the Court’s assessment of Google’s role within the advertising ecosystem. Google characterised itself as a neutral intermediary which provides technological infrastructure. The Court, however, found this characterisation inconsistent with the operational realities of its platform.

The judgment highlights Google’s active involvement in designing and maintaining the keyword advertising system. This includes recommending search terms through automated tools, conducting keyword auctions, ranking advertisements based on bidding and relevance, and monetising user engagement through cost-per-click revenue models.

In light of these features, the Court held that Google is not a passive conduit but an active participant in shaping and profiting from the commercial use of trademarks. The platform does not merely host third-party content; it structures the conditions under which trademarked terms are monetised.

This finding had direct consequences for intermediary liability. The Court held that Google’s active commercial role disqualified it from safe harbour protection under Section 79 of the Information Technology Act. The judgment thus narrows the protective scope available to digital intermediaries when they play a substantive role in facilitating and profiting from potentially infringing activity.

Doctrinal Shift or Contextual Evolution?

The key question is whether Hindware v. Grohe India & Ors marks a doctrinal rupture or an evolution of trademark law in response to technological change. One view sees the judgment as a necessary adaptation to algorithmic markets, where invisible data structures shape consumer choice and traditional concepts of “use” and “infringement” are no longer sufficient. The opposing view is that it expands trademark rights into keyword bidding, potentially restricting comparative advertising, increasing market entry costs, and limiting consumer access to alternatives. The central tension is between protecting brand investment and preserving competitive advertising.

Conclusion

The Hindware v. Grohe India & Ors decision marks an important development in Indian trademark law by recognising invisible keyword advertising as actionable “use” and limiting intermediary protection where platforms actively facilitate and profit from such use. The judgment adopts a functional approach that reflects the realities of algorithm-driven markets. At the same time, it leaves unresolved the broader implications for comparative advertising and competition, ensuring that the balance between trademark protection and competitive digital markets will remain an evolving area of law.