Keyword advertising may amount to trademark use, but interim injunctions still depend on balance of convenience and trial issues.

Use of a registered composite trademark, or a deceptively similar combination of its constituent words, in keyword tools and sponsored online advertisements can amount to trademark use in the course of trade under the Trade Marks Act, 1999. Registration carries a prima facie presumption of validity, so descriptiveness alone does not justify rejecting the mark's protection at the interlocutory stage; acquired distinctiveness may be examined at trial. The Court found a prima facie case and balance of convenience in favour of the proprietor, but left the existing arrangement undisturbed and declined fresh injunctive relief pending trial.

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Issues: Whether use of the appellant's registered marks, or their constituent words, as keywords, in keyword suggestion tools, and in sponsored advertisements amounted to trademark infringement or passing off, and whether interim injunction should be granted against such use.

Analysis: The registered marks were combinations of descriptive words, but the appellant had registration over the composite marks and not over the individual words in isolation. The Court held that use of the composite or substantially similar combination in advertisements and sponsored links could amount to use in the course of trade within the meaning of the Trade Marks Act, 1999, and that the statutory concept of use extends to advertising and statements about the availability or performance of services. The Court further held that the validity of registration could not be finally negated at the interlocutory stage merely on the plea of descriptiveness, because registration carries a prima facie presumption of validity and the issue of acquired distinctiveness could be examined at trial. At the same time, the Court noticed that the existing arrangement based on the search engine's undertaking had been operating for a considerable period and that the substantive questions, including irreparable injury, required trial.

Conclusion: The Court found a prima facie case and balance of convenience in favour of the appellant, but declined to disturb the continuing arrangement and therefore dismissed the appeals without granting the fresh injunctive relief sought.

Ratio Decidendi: Use of a registered mark, including its composite form or a deceptively similar combination, in sponsored online advertising can fall within trademark use under the Trade Marks Act, 1999, but interlocutory relief will depend on the overall balance and the court may leave the existing arrangement undisturbed pending trial.

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