Beyond Safe Harbour: Intermediary Liability for Keyword Advertising After Hindware Ltd. v. Grohe India Pvt. Ltd.

Introduction

The Delhi High Court has delivered a judgement on May 22, 2026, which needs to be carefully examined by every digital Platforms in India. Justice Mini Pushkarna restrained Google LLC and Google India from selling the registered trademark “HINDWARE” as an advertising keyword which was decided in the case of Hindware Ltd. v. Grohe India Pvt. Ltd. & Ors., 2026, and directed Google to pay 30 lakh as damages.

However, this case not only revolves around sanitaryware products rather it also raises a serious concern about digital platform liability of intermediary platforms. When a platform sells the trademark of another company to its competitor companies for advertising purpose in order to make money through every click on that advertisement, whether it can still claim to be a neutral middleman? The answer is clearly no, after the Hindware judgement.

The Architecture of Infringement

Between 2013 and 2014, Hindware (formerly HSIL Limited) discovered that Google had sold the term “HINDWARE” and similar keywords to its competitors like Grohe India and Cera Sanitaryware on Google’s AdWords program. It means whenever a customer will particularly search for “Hindware Sanitaryware”, its competitor’s brand products will be shown first as a sponsored advertisement, influencing customers choices at the moment when they were most likely to buy the products. Grohe, Cera, website developer Omkara Infoweb all settled with Hindware, only Google left claiming that it was merely acting as a neutral intermediary by providing the advertising platform and that no trademark “use” had occurred. But this contention was dismissed by the Delhi High Court.

Google’s Invisible Keywords Argument

The main legal question arose as to whether the “use” of a registered trademark as an undisclosed keyword would be considered as “use in advertising” under the Trade Marks Act, 1999. Google contended in its defence that there was no legal “use” of the trademark had taken place since the term “HINDWARE” never visibly emerged in any advertisement.

The court clearly rejected this argument. Reading Section 2(2)(c), which extends “use in relation to goods” to “use in any other relation whatsoever”, Justice Pushkarna held that this language “must be interpreted widely and would include even invisible use of the mark”. The court further held that when a registered trademark is used in advertising without the owner’s consent is considered “in use” under Section 29(6)(d) of the Trade Marks Act, 1999. Section 29(8) The Act also states that when an advertisement takes undue advantage of registered trademark, it is also an infringement of this Act. Critically, the court treated “advertising” as a verb which encapsulates the entire process of promotion, not merely the final visible output. The keyword is the mechanism that triggers the advertisement; its deployment therefore falls within “use in the process of advertising.”

As Justice Pushkarna said, “invisible use of the trademark to divert the traffic from the proprietor’s website to the advertiser’s website shall amount to use of the mark for the purpose of Section 29.” The court compared these undisclosed keywords to hidden meta-tags (these are the invisible pieces of code inserted in a website which guide internet users towards that website without the knowledge of the customers). The court said that both function in a similar manner in law. This resolved a legal question that had remained uncleared in the case of MakeMyTrip India Pvt. Ltd v. Google LLC, 2022, where the division bench had found it difficult to prove that consumers were actually influenced and confused by these hidden keywords. The division bench held that Booking.com and Google were not held liable for infringement of Section 29(8) of the Trademark Act, since Booking.com is itself a renowned brand and consumers can identify that the advertisement is coming from Booking.com and not from MakeMyTrip. The court held that there would be infringement of Trademark Act when the consumers are actually confused, deceived, or misrepresented.

However, the approaches adopted by the Hindware judgement and MakeMyTrip judgement are distinct from each other. The court in the MakeMyTrip case mainly focused on the creation of confusion or misrepresentation to consumers as an infringement of this Act. While the court in Hindware judgement relied on Section 29(8), which states that there would be infringement of the act, if the advertisement takes undue advantage of registered trademark. The court held that the term Hindware is a renowned mark and auctioning of such mark to the rivalry brand leads to the exploitation of its goodwill, even in the absence of proof that consumers were actually confused or misrepresented from such advertising.

Failure of Safe Harbour protection

The second argument upon which Google relied was the protection given by Section 79 of the Information Technology Act, 2000, which protects intermediaries that passively transmit third-party information. But the court refused the argument and contended that since Google’s keyword planners tool itself suggested “Hindware” to the competitors and facilitated the keyword, they auctioned it and benefited from every click. Google also failed to fulfil Section 79(2)(b) of this Act, as it prevents the intermediary platform to “select the receiver of transmission” as Google aimed at those consumers who are actively searching for hindware products.

As the court held that, “Google cannot be permitted to shrug off responsibility by making available a tool that leads to infringement, and then turning around to claim that the said tool was not mandatory.” The court relied on its earlier principle laid down in Google LLC v. DRS Logistics (P) Ltd, 2023, where a platform taking benefits from keywords selling cannot claim defence under Section 79. The court also held that even though the competitor brands are using the registered trademark, that would not be considered as an infringement of the Trademark Act, if the consumers are not able to find the sources of advertisement. The court held that since the consumers cannot see those invisible keywords, that advertisement is coming from which source, it is not the infringement of trademark. Further court also highlights that Google’s failure to take adequate actions after the trademark infringement complaints makes it ineligible to claim the protection.

International Analysis

India’s instance on Hindware significantly departs from the earlier international position on this issue. As in Google France SARL & Google Inc. v. Louis Vuitton Malletier SAThe Grand Chamber held that there was no trademark infringement from Google’s side, as it had only provided technical infrastructure and not used those keywords in its commercial capacity, this approach widely protected digital platforms across Europe over years.

However, the Delhi High Court shifted its focus to a more nuanced approach by focusing on its role in recommending, auctioning, and gaining profits from such keywords which amounted to advertising, which was sufficient to deny middleman protection.

Gradually the position of EU was later evolved in Interflora Inc. & Interflora British Unit v. Marks & Spencer plc, it was held by the Court of Justice that the use of registered keywords infringes the source identification function of trademark in advertising, thereby, it substantially narrows down the upholding of Google France case and aligns with the approach of Hindware judgement.

In the United States also, the liability of such intermediary platforms was established which is involved in recommendation and auction of registered keywords. The court in the case of Rescuecom Corp. v. Google Inc.(2009), held that the suggestion of registered keywords by Google to the competitor brands is considered “use in commerce” under the Lanham Act. In East Asia, TAHAN Furniture v. W. Horizon, Intellectual Property and Commercial Court, Taiwan,(2026), held that as per Article 25 of the Fair-Trade Act the use of registered trademarks of the competitor’s brand amounted to unjust competition.

These cases showcase that they are gradually developing to a broader shift across Europe. Initially the European court gave safeguards to intermediary platforms but later on it gradually shifted its view in narrowing the safe harbour in the Interflora case. The U.S. in Rescuecom considered auctioning of keywords as “use in commerce” Taiwan applied unfair competition rule rather than traditional trademark rule. India’s stricter approach reflects the global trend, at the same time it also advocates for the need for clear tests and legal standards, so that intermediary platforms cannot escape its liability by the use of such registered trademarks.

What the Judgement Left Unanswered

While the Hindware judgement leaves an important impact in establishing digital platform liability for keyword advertising. However, it leaves two important structural gaps that involve questions about the long-term coherence of the doctrine established by the court.

The first structural gap focuses on the unjust enrichment principle, which states that no party gains profits or takes advantage from the use of another’s property without any legal justification. As per Section 135(1)(a) of the Trade Marks Act, 1999, the courts can order "rendition of accounts of profits" as a safeguard to the owner company. For many years, Google gained unauthorised revenue from Hindware’s registered trademark by selling its keywords. However, courts never directed Google to repay those profits. And the Delhi High Court directed Google to pay 30 lakh damages for Hindware’s loss, but not against its unlawful gain. If the court will not determine the disgorgement of profit derived from such unlawful profit, then damages awarded will still remain nominal and may remain ineffective to deter similar conduct by digital platforms. With the application of accounts of profit safeguards, the burden to pay the profit along with the damages to the owner company would restrain intermediary platforms which are involved in unauthorized auctioning of keywords.

The second structural gap focuses on active-participant doctrine. In Hindware's case, Google actively recommended, auctioned, gained profits and monetised the trademarked keyword. But if a platform performs only limited activity, can it still be held responsible for constituting unauthorised advertising? Therefore, it is important to establish a threshold test, in order to determine such liability. Which will ensure that established principles should not be only limited to facts but also provide a structured framework for platform liability. The threshold test would be created in such a manner which would fulfil all the elements such as suggestion of keywords, auctioning through advertisements and gaining unauthorized profits out of such advertisement, rather than simply involving in only one activity.

Conclusion

The Hindware judgement marks a turning point in India’s digital law. It showcases that invisible keyword triggers are not neutral tools but active acts of advertising. Platforms that recommend, auction or make profit from trademarked terms cannot hide behind safe-harbour protection. Yet, the case leaves gaps such as need for unjust enrichment remedies which safeguards the rights of the owner company whose trademark is registered and a clear test for active participation to ensure the rights of Intermediary platform liability. Therefore, there must be a balanced framework that would act complementary to each other in ensuring safeguards to both in the digital marketplace. Without fulfilling these gaps, Hindware will continue to remain a significant yet unfinished precedent in India’s intellectual property regime.

Author: Harshita Vardhan & Anshu Gupta, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

Endnotes

1. Hindware Ltd. v. Grohe India Pvt. Ltd. & Ors., CS (COMM) No. 580 of 2014, Judgment dated May 22, 2026 (Del. H.C.).

2. Trade Marks Act, 1999, §§ 2(2)(c), 29, 135, No. 47 of 1999, India Code (1999); Information Technology Act, 2000, § 79, No. 21 of 2000, India Code (2000).

3. Google LLC v. DRS Logistics (P) Ltd., 2023 SCC OnLine Del 784.

4. Google France SARL v. Louis Vuitton Malletier SA, Joined Cases C-236/08 to C-238/08, ECLI:EU:C:2010:159 (Ct. Just. Eur. Union Mar. 23, 2010); Interflora Inc. v. Marks & Spencer plc, Case C-323/09, ECLI:EU:C:2011:604 (Ct. Just. Eur. Union Sept. 22, 2011).

5. Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009).