How Mr. Aggarwal went from the Corner Mithai Shop to transporting goods, and eventually in the annals of legal history (Part 1)

Closely tied to the question of domain names, and what protection they enjoy under the law of trademark is another very crucial and important facet – Keywords and Metatags. These are basically tools that digital marketers employ to increase their reach and traffic online. But what exactly does that mean? And how are they both tied to the Search Engine Optimisation (short for SEO’s) that so many digital marketing and advertising firms employ. Can anyone claim ownership over a keyword? Can using a keyword by a third party amount to infringement of a trademark??

As we can see from the earlier articles brand names may be generic verbs/words from the English language or something unique from the universe of words available in any language.?

KeyWords? Metatags??

The search terms or phrases, which are commonly known as keywords, are those which one believes are most relevant to the article or advertisement. Very similar to hastags (#) which are commonly abound on twitter, facebook and other social media. These are slightly different from meta-tags (meta description). Meta-tags are machine readable codes used by search engines to index websites. (Note 1) Essentially website-descriptors put in the source codes of websites. The job of both is to tell the search engine artificial intelligence and algorithm what the website, article, advertisement contains. Somewhat of a backend trigger. Both are not visible anywhere within the advertisement, article or website nor are they used in any tangible or perceptible manner to the end user.?

Let us consider a unique example here – “Aggarwal Packers & Movers”. The company is in the process of transportation, courier, moving and packing needs with over 300 branches all over India. Let us now imagine that another company going by the name of Agarwal Packers India also enters this industry and begins to offer their services to transport and move goods around the country. Agarwal, Aggrawal, Agarwal is after all a common Indian surname, and surely there can be more than one Mr. Agarwal/ Aggrawal/ Agarwal in the transport business. Nothing wrong with that.?

Now imagine Mr. Agarwal’s son a chirpy 21-year-old with a business degree from a top London Business School decides that he wants a pie of the action. What does he do next? He does what anyone at his place would do. He googles how to increase the traffic to his new website Agarwal Packers India. That is where he comes across the Google Adwords Programme. Just a quick recap here – Advertisers having an AdWords account can access the AdWords Program, which allows advertisers to create, select, edit and manage keywords based on which their advertisements can show up as a ‘sponsored links’ / ads in response to a search query entered by any user. So these are essentially like sign-posts that we may see very often on roads and highways. You know the ones which are used to increase footfalls in a roadside Dhaba. Except, under a big sign-board a smaller business comes, and erects his own sign-post.?

Mr. Agarwal’s son however realises that with some innovative marketing he can actually use the Adwords to increase traffic Agarwal Packers India inorganically using Google Ads. So that when anyone types Aggarwal Packers & Movers the keyword is triggered and the advertisement of Agarwal Packers India becomes eligible for display on the Google Search Engine Results Page. Easy-peasy (Note 2). All he has to do now is offer some financial incentive to the Google Ad algorithm to display his ads. Bribing an algorithm? Not the first time we will hear of it – think all your premium subscription plans on online dating/shaadi websites. ?So a bunch of competition bids the Adwords to display their website on top, and whoever pays the highest gets the numero uno spot on the Google webpage. You know all your ‘Sponsored Search Results’ on google.?

Think of the sign-post example, except you pay NHAI to keep some signboards on top and some below. So your NHAI then becomes an important service provider.

But someone doesn’t like that - ?Aggarwal Packers & Movers, the registered trademark owner which has been in the industry for decades does not like being displaced by a 21-year-old new-kid-on-the-block because internet and digital marketing. What are their options? Keep a look-out for Part 2 to find out!

Note 1: For more discussion on Meta-Tags and how they function, albeit judicially, refer to - Mattel Inc. & Ors. vs. Jayant Agarwalla & Ors., 2008 (38) PTC (416) (Del) and People Interactive (I) Pvt. Ltd. vs. Gaurav Jerry, MIPR 2014 (3) 101

Note 2: Google claims the display and ranking of an Ad is not determined by the selection of keywords alone nor the highest bid, but is a function of a combination of the bid amount, quality score (that factors the relevance of the Ad), the context of a user’s search and the expected impact of Ad formats and extensions.?