Change leads to innovation, never more so than in IP infringement. This particularly affects e-commerce, upending traditional notions of trademark use. Before, breaches of IP rights were obvious visual misappropriations on physical goods. Now, surreptitious backend strategies, such as meta tag infringing, manipulate consumer perceptions and online traffic.
Essenese Obhan
Managing Partner
Obhan & Associates
Meta tags are embedded in the HTML code of web pages, allowing search engines to identify and rank pages. Unseen by users, they include keywords, descriptions and titles. Meta tags do not directly show the mark to consumers but allow for the manipulation of search engine results. By using a rival’s trademark in its own meta tags, a company can mislead search engines into ranking its content for searches related to the trademark owner. The company’s name may then appear alongside or above the competitor in search rankings, despite having no association with the rival. This can create consumer confusion, unfairly divert business and erode the brand value painstakingly built by the trademark holder.
The courts have increasingly been asked whether this constitutes trademark infringement. Sections 29(6) to 29(9) of the Trade Marks Act, 1999, dealing with infringement, expand the scope of the use of a mark to include its placement in such areas as advertising, business papers and labelling. Judgments hold that using a trademark in meta tags or source code constitutes use. Even without a display, using a mark in a way that affects market behaviour may constitute infringement. This interpretation aligns the law with digital marketing strategies that have real commercial impact.
Ayesha Guhathakurta
Senior Associate
Obhan & Associates
In Google LLC v DRS Logistics (P) Limited, Delhi High Court analysed invisible trademark use through Google Ads and keywords. It held that using a trademark, even if invisible, to trigger search results or advertisements is actionable if it causes confusion or misleads consumers. Even brief confusion is unlawful because of “initial interest confusion”. However, the court distinguished this from “initial interest”, holding that using a trademark as a keyword and a sponsored link must have a real likelihood of confusion. Mere interest in a link without the likelihood of confusion will not lead to infringement.
In Mattel Inc and Ors v Jayant Agarwalla and Ors, the same court found from archived articles, blog posts and social media pages that users were playing the game Scrabulous after searching online for Scrabble. This was, on the face of it, a deceptive similarity and caused confusion.
The Bombay High Court, in People Interactive (I) Private Limited v Gaurav Jerry and Ors, found that by plugging the plaintiff’s mark and domain name into his website’s meta tags without authority, the first defendant had diverted up to 4.67% of online traffic away from the plaintiff’s site to his own.
More recently, in Titan Company Limited v Lenskart Solutions Private Limited before Delhi High Court, Titan alleged that Lenskart had used its registered trademarks “Titan” And “Fastrack” in unseen meta tags and source code on its website to manipulate search rankings and gain undue advantage. In accepting that it had taken the steps alleged, Lenskart claimed this was an inadvertent error and that steps had been taken to remove those references. Although it was disposed of without dispute, the case confirms it is settled law that invisible use falls within the definition of use.
The digital age has brought new opportunities, but it has also introduced new challenges. Today, brands must not only battle counterfeit products and deceptive packaging, but also prevent algorithmic manipulation, keyword hijacking and backend code exploitation. Because search algorithms drive visibility and relevance, unseen elements, such as meta tags and embedded code, can cause brands significant damage.
IP rights holders have to be proactive and technologically aware. Regular audits of search results, source code scans and digital monitoring tools are the key. Legal knowledge is important in recognising infringement, not only when it is visible but also when it is represented by algorithms and digital misdirection. Lawmakers should consider whether the statute should be brought up to date, although existing law may be sufficient to deal with changing commercial models and business malpractice.
Essenese Obhan is the managing partner and Ayesha Guhathakurta is a senior associate at Obhan & Associates
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