Keyword Bidding V. “Bait & Switch”: Makemytrip V. Google At War With The Dark Patterns Guidelines, 2026

Published: 2026-04-13 12:10:11 ET MMYT

Published on 04/13/2026 at 12:10 pm EDT

Introduction

The advent of digital advertising has brought trademark law into direct conflict with online market practices, particularly keyword bidding. The use of competitors' trademarks by businesses to promote their own goods and services, albeit as invisible keywords, has often been debated as “infringement”, thereby causing unfair advantages and consumer confusion.

Courts reveal a relatively permissive stance, as per established precedents, but the enactment of the Dark Patterns Guidelines shines a brighter light on consumer interests. It criticises practices through the perspectives of market fairness, transparency, and accountability.

This article examines this emerging tension between consumer protection and trademark law, and seeks to determine if the recent judicial stance aligns with this regulatory evolution.

Overlap Between Trademarks & Keyword Bidding

Similar to auctions, keyword bidding refers to the practice of purchasing specific keywords relevant to your goods or services, which enables the highest placement of your advertisements (“ad” or “ads”) and greater visibility amongst users1. The advertisers are required to pay the particular ad publisher (search engines like Google or Bing, or social media platforms like Instagram or Facebook) every time a user clicks on the ad and views the advertiser's goods and/or services. Such advertising is also known as pay-per-click (“PPC”) advertising. Keyword bidding constitutes a prevalent advertising strategy in the realm of the online advertising regime.

Such keyword bidding conflicts with trademark law when advertisers gain rights over a registered trademark not belonging to them, to divert traffic and attract consumers. Although the used word mark does not appear in the advertisement and such ads are labelled “Sponsored”, proprietors of the used marks claim that such practices infringe on their registered mark(s), albeit being done for comparative competition. This is owed to the fact that trademark infringement requires the unauthorised use of a trademark in commerce, such that it may cause confusion in the minds of consumers2.

The law, however, may not always agree. The primary legal question that has time and again come up for consideration is whether the “invisible use” of a trademark attracts liability under Section 29 of the Trade Marks Act, 1999 (“Trade Marks Act”).

Baited to Switch? Exploring the Dark Patterns Guidelines

The case of MakeMyTrip (India) (P) Ltd. v. Google LLC3 (“MakeMyTrip v. Google” or “MMT v. Google”) shed significant light on this legal conundrum. The Hon'ble Delhi High Court held that the use of registered marks as ad keywords by Booking.com did not infringe on MakeMyTrip's trademarks, since the services rendered by both entities were similar, and hence, no infringement could be made out under Section 29.

Had this case proceeded at present, the ruling upheld would have been contrary to the Guidelines for Prevention and Regulation of Dark Patterns, 20234 (“Dark Patterns Guidelines” or “Guidelines”) issued under the Consumer Protection Act, 2019. The Guidelines describe dark patterns as deceptive practices that influence consumer behaviour through misleading advertisements, thereby amounting to unfair trade practices5.

Of the 13 dark patterns prohibited under the Guidelines, trademark infringement is triggered by “bait and switch”6 and “disguised advertisements”7. “Bait and switch” refers to advertising a particular outcome before the user, but switching to an alternate one. For instance, if XYZ Co. has bid on and gained rights over “ABC”, a trademark registered and owned by another proprietor, any time a user searches “ABC”, the search engine would produce results/outcomes also displaying ads belonging to XYZ Co. In the realm of trademark law, this would amount to XYZ Co. taking unfair advantage of a registered trademark since it is using another's trademark to draw customers to itself. Along similar lines, the ads belonging to XYZ in the above scenario would constitute “disguised advertisements”, unless they are being clear disclosure, such as by way of “Sponsored” or similar labels on such ads. As long as the label is clear and visible, the ad is considered “transparent” enough.

It is pertinent to note that courts have not always recognised such practices to be violative of trademark law, but the consumer protection framework holds such advertisers and intermediaries (those displaying the ads) liable for the same.

How Has the Jurisprudence Around Keyword Bidding Evolved?

In an order dated 16 March, 2022 by Pratibha M. Singh, J, in the case of UpCurve Business Services Pvt. Ltd. v. Easy Trip Planners Private Limited & Ors.8, it was stated that the use of the Plaintiff's registered mark “udchalo” as an ad keyword by Easy Trip to promote its competing similar business constituted infringement and was held to be violative of the former's rights as per the Trade Marks Act, 1999. Easy Trip was restrained from bidding on the keyword till the next hearing date.

However, a contrary view was taken by the Hon'ble Delhi High Court in Google, LLC v. DRS Logistics (P) Ltd.9. Upon a more careful and detailed examination on several grounds, it was discussed that the use of a trademark by an advertiser or by a search engine itself cannot be considered as the use of the trademark itself, since the keyword so used does not act as a source identifier of the goods and services advertised under Section 29(1) of the Act. Unless there was evident confusion in the mind of the internet user, dilution of a trademark, or a compromise thereof, infringement could not be proven. However, it was stated that an action could lie against such advertisers if the internet user was deceived into accessing the advertiser's website rather than the originally searched one. Even if such confusion lasted for a very brief time period, the same would attract liability under Section 29(2). Adopting this view would require an in-depth investigation by any Court subsequently hearing a case with similar facts.

Further, in Google, LLC v. MakeMyTrip (India) Private Limited & Ors.10, by virtue of an order dated 14 December, 2023, the submissions that MakeMyTrip's trademarks, “MakeMyTrip” and “MMT” by Booking.com amounted to unfair advantage and were contrary to honest commercial practices and thereby constituted infringement under Section 29(8) were rejected. Using trademarks as keywords, the Court held, could not be taken to result in the use of the trademark itself or as an advertisement of goods and services under Section 29(7). Conclusively, the Hon'ble Court ruled that an injunction did not necessarily and automatically follow from the use of a deceptively similar trademark for similar goods and services.

These decisions by the Court map out a fairly permissive rule in the context of keyword bidding in light of established trademark rights, that a competitor is permitted to bid on a registered trademark as long as no confusion is caused in the mind of the consumers, consumers are not deceived to make choices they otherwise would not have, and the distinctiveness of the mark so used is not substantially diminished.

Does the MakeMyTrip Judgment Still Hold Water?

If the case were heard today, it would most likely have fallen under the purview of the Dark Patterns Guidelines, particularly attracting the dark pattern of “bait and switch”.

Let us revisit the facts of the case. Upon typing the words “make my” on Google, the top search result shall be that of “MakeMyTrip”, and your intention to access those services and no other could be clearly established. With this in mind, if you made such searches and advertisements of Booking.com occupied the top results, it would capture your attention before you could access MakeMyTrip's services. This would squarely resemble the rationale of the “bait-and-switch” pattern identified in the Guidelines, since the search queries acted as the “bait” or initial lure for you to click on, and the subsequent advertisement of the competitor was the “switch” from your intended search results or the “substituted outcome”.

While the Hon'ble Court examined the case on grounds of trademark law, assessment of the same from a consumer-centric protective lens shall raise liability against both Google and Booking.com under the Dark Patterns Guidelines on account of misleading customers in digital marketplaces.

Way Forward

The Dark Patterns Guidelines mandate transparency to avoid actions arising from it. It ultimately relies on consumer perception and behaviour to determine liability. In this regard, such keyword bidding of registered trademark could possibly be permitted only if the competing advertisements mandatorily carried unambiguous customer labels/notices.

For instance, if the competitor's ads were displayed accompanied by language such as “Also try” or “Sponsored” (as alternative goods and services, not substitutes), such advertisements would align with transparency requirements under the Guidelines while simultaneously permitting keyword bidding under trademark law as per precedents.

What is important is that consumer confusion shall not be caused, even for a brief period of time.

Additionally, the Trade Marks Act could be amended along similar lines. Courts have previously upheld contrary views that the use of a registered word mark as an ad keyword may or may not constitute trademark infringement. In this context, to avoid ambiguity, conditions for when such use may amount to a violation could be expressly and statutorily provided. The “use in commerce” requirement inherent in trademark law shall be expanded to include digital and e-commerce marketplaces as well.

Conclusion

While the current trademark jurisprudence still permits keyword bidding, the Dark Patterns Guidelines take a step in the direction of stronger consumer protection. The latter requires greater transparency from the advertisers, and ultimately, that marketers engage in honest commercial practices and that the market remains fair. What this means in the context of trademark law is that registered marks owned by other/competing proprietors shall not be used in a disparaging manner, or any other way that may be detrimental to their character, goodwill, and repute.

Footnotes

1 What Is Keyword Bidding?, PERISCOPE MEDIA, http://periscopemedia.co/glossary/what-is-keyword-bidding (last visited 14 March, 2026).

2 Trade Marks Act, 1999, §29(2), Acts of Parliament, No. 47, 1999 (India)

3 2024 SCC OnLine SC 266.

4 Notification F. No. CCPA-1/1/2023-CCPA-(Reg), Extra, dated 30-11-2023, published in the Gazette of India, dated 30-11-2023.

5 Rule 2(e), Dark Patterns Guidelines.

6 Id, at (7), Annexure 1.

7 Id, at (9), Annexure 1.

8 CS (COMM) 155/2022.

9 (2023) 4 HCC (Del) 515.

10 FAO (OS) COMM. 148-2022.

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