18.4.12 As per ADIF, this issue raised in the present matter is different from the issue of keyword bidding dealt with in Matrimony.com and Another v. Google LLC & Others, Case Nos. 7 & 30 of 2012. ADIF has submitted that in this case, it has been alleged that Google has no right over the unauthorised and impermissible usage of a registered trademark of app developers on Google Play Store as per the GPTS and DDA, still Google Ad Trademark Policies allow competitors to bid on a registered trademark. Hence, such policy in itself is alleged to be unfair. The Commission never had an opportunity to examine GPTS and DDA and its import on keyword bidding in the former cases. Secondly , one of the reasons that the Commission in Matrimony case ( supra ) dismissed the allegations was because Bharat Matrimony had not challenged the terms of the Ad Text Policy of Google per se . However, in the present information, the submission is that Google’s Ad Policies on Trademarks in itself is anti-competitive under provisions of Section 4(2) of the Act. Thirdly , the Commission in Matrimony case ( supra ) held that it cannot look into issues pertaining to trademark infringement. However, the Hon’ble Delhi High Court in Google LLC v. DRS Logistics (P) Ltd. , (2023) 4 HCC (Del) 515 and DRS Logistics (P) Ltd. and Anr. v. Google India Pvt. Ltd. and Others, 2021 SCC OnLine Del 5767 dealt with similar issue pertaining to trademark infringement and observed that the owners of trademarks are aggrieved to the extent that the customers searching for their trademarks are diverted to websites of their competitors. Therefore, the Hon’ble Court held that there are competing rights and interests which need to be reconciled by reference to the relevant statute. Hence, the Commission is the relevant authority to look into the imposition of unfair conditions under the Act. Finally , the Commission in Matrimony case ( supra ) had not examined Google’s search advertisement services in Google Play Store. Hence, the facts and cause of action in the present matter are different.
