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How strong is BharatMatrimony’s case against Google and competitors?

by Satrajit Sen

by Satrajit Sen

Consim Info, which owns matrimony portal BharatMatrimony.com, recently filed a trademark infringement case against the internet search company Google and three other matrimony portals Jeevansathi.com, Shaadi.com and SimplyMarry.com in the Madras High Court. The court while hearing the case ex parte, gave an interim injunction to Consim. In the light of this case, AlooTechie tried to talk with some experts and see how they view the development.

According to Murugavel Janakiraman, founder and CEO, Consim Info, there are two reasons why the group has sued Google, and competitors Shaadi.com, Jeevansathi.com and SimplyMarry.com. “Firstly, we filed the case seeking prevention of competitive advertising on Google. People searching for our trademarks know what they are searching for, and Google is the entry point for our sites. And hence the users should not be shown ads of other similar websites. Secondly, we have asked Google to stop allowing our competitors using our trademarked keywords as headings. For example, if someone searches for ‘Tamil Bride’, which is a generic keyword, competitors use our trademarks (Tamil Matrimony) as headings in Google AdWords, which linkback to their websites,” Janakiraman told AlooTechie.

Following the Consim Vs Google case, AlooTechie tried to explore if the practice of showing competitors’ ads when one is searching for a brand name on Google, is happening only in the online matrimony space or in other verticals as well and found that there are similar cases happening with even offline brands such as Adidas, Dell and Max New York Life. For instance, a search for Adidas, Puma or Reebok on Google shows advertisements from Nike, while a search for LIC shows up ads from Max New York Life and Aegon Religare. Similarly, a search for HP leads us to ads from Dell and a search for Dell shows ads from Samsung. Looking into the online real estate space, we found that a search for 99acres shows ads from MagicBricks.

Clearly, this appears to be a common problem across the verticals and categories and is not only confined to the online matrimony space or even online space. Hence, we caught up with Mahesh Murthy, founder and CEO, Pinstorm, to know more about the practice of using a competitor’s registered trademark to advertise one’s products and services online.

According to Murthy, Google already has a rule in place which says that if a company can show the proof of its registered trademarks to Google, no one else would be allowed to advertise using these keywords. “For example, words like Jet and Microsoft are registered keywords for Jet Airways and Microsoft Corporation and Google doesn’t allow any other advertisements around the same search keyword. Now, in India, if a company fails to show the proof of its registered keywords, Google allows competitors’ ads to appear on search results, but restricts usage of the keywords in the copy of the ads,” said Murthy.

Speaking on whether BharatMatrimony is right in asking Google to stop competitors from using its keywords as ad headlines, Murthy said, “As claimed by Consim, ‘TamilMatrimony’ (without a space) is a registered keyword of the group. So, it appears that the group owns a combination of two generic words Tamil and Matrimony. Now, the competitors are using Tamil Matrimony as two separate generic keywords in their ad copies and hence BharatMatrimony can’t claim that these two separate generic terms are their registered keywords,” he added.

Agreeing with Mahesh Murthy, Pavan Duggal, advocate, Supreme Court of India, said that the usage of two generic terms separately in the search ads cannot be considered as a registered trademark infringement as BharatMatrimony just owns a joined version of the two generic terms. According to Duggal, depending on usage patterns, even a generic word can be registered as a keyword and once the trademark is registered the party has the legitimacy to ask search engines to protect the usage of that particular keyword by competitive properties in search results.

Describing the complaints made by BharatMatrimony as meaningless, Mahesh Murthy said that the group itself can be held guilty for a similar practice. “Though the Madras High Court has given an interim injunction, this is a wrong judgement and the decision should be challenged or else Jet Airways will tomorrow say that ‘Airways’ is their registered keyword and they want other airlines to stop advertising around that keyword,” said Murthy. He further suggested Google to stop using different policies in different countries and to make a standard keyword advertising policy across the world.

Commenting on the Consim Info Vs Google case, Pavan Duggal, a cyber law expert, further said that the existing provisions of Indian cyber laws are being tested by the new challenges of this growing medium. “However, in this case where there is an Indian dispute, between Indian parties and in an Indian court, the enforceability of the law in favour of BharatMatrimony is something which is expected,” said Duggal.

When asked why Consim focused its trademark infringement case on the group’s matrimonial competitors, Janakiraman said that though the problem persists across categories and verticals, they have decided to go for BharatMatrimony as it is the company’s premiere and well-known brand. He further said that the company had earlier contacted Google on the same but did not get a good response and hence had to move to court.

Responding to the case filed by Consim Info, a Google India spokesperson has said, “We have received the court papers and are in the process of reviewing those. We believe that our policies are in compliance with the mandate of trademark law and we will defend our position on that basis. We also believe that consumers are smart and are not confused when they see a variety of ads displayed in response to their search queries. We will not be able to go into further details of the case, since the matter is sub judice.”

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