The Supreme Court on Thursday refused to entertain a plea by online travel booking portal MakeMyTrip which had alleged that its trademark was being infringed by Booking.com through Google Ads program. [MakeMyTrip India Private Limited vs Google LLC and ors].
MakeMyTrip moved the Court arguing that because of the Google Ads program, search results for “MakeMyTrip” would throw up sponsored links to Booking.com, a direct competitor.
However, a bench of Chief Justice of India (CJI) DY Chandrachud with Justices JB Pardiwala and 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.
"There is no possibility of any confusion. If you want to work on MakeMyTrip, then why will you log into Booking.com? This is not an issue which is res integra. They are not using your mark as well ... We have understood the matter. Dismissed," the CJI stated.
Senior Advocates Mukul Rohatgi and Gaurav Pachnanda represented MakeMyTrip. Senior Advocates Dr. Abhishek Manu Singhvi and Harish Salve appeared for Google.
The plea by MakeMyTrip challenged a Delhi High Court division bench order from December last year.
By way of background, Booking.com had made the highest bid and purchased the 'MakeMyTrip' keyword on the Google Ads Program.
As a result, MakeMyTrip pointed out that Google search results for 'MakeMyTrip' as a keyword would display sponsored links to Booking.com which is a direct competitor.
MakeMyTrip objected to its business being so diverted to a competitor through the use of such sponsored links. Meanwhile, Google is paid by the advertiser (Booking.com in this case) every time an internet-user clicks on such a sponsored link, MakeMyTrip argued.
In December 2023, a division bench of the Delhi High Court 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.
Before the Supreme 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's ad interim order.
Notably, the single-judge had earlier granted an injunction in favour of MakeMyTrip.
During today's hearing, the Supreme Court bench briefly queried how a case for passing-off of trademark would arise in the present case and why MakeMyTrip was challenging an interim order.
"This is not ad interim order.. The matter has been disposed of. Both orders (division bench and single judge orders from the High Court) are 30-40 pages. This is not the Bombay type," Senior Advocate Rohatgi replied.
However, the top court eventually dismissed the plea. All the same, the bench agreed to clarify that such dismissal would not affect further hearing before the single-judge.
"It needs to be said that this order will not affect the motion hearing before single judge," Senior Advocate Pachnanda had urged the top court.
"We will clarify," CJI Chandrachud replied.
MakeMyTrip's plea was filed by Sim And San, Attorneys at Law through its advocate-on-record firm, Parekh & Co.
Ira Law and Mason & Associates had represented Google before the Delhi High Court. Booking.com was represented by a team from Khaitan & Co, led by Ankur Sangal, Partner along with Pragya Mishra, Principal Associate, and Amrit Sharma, Associate before the Delhi High Court.