The use of trademarks as keywords for promoting a business using a competitor's trademark would be violative of the trademark owner's rights.

ORDER

1. This hearing has been done through hybrid mode.

I.A. 7252/2022 (for exemption)

2. Allowed, subject to all just exceptions. I.A. 7252/2022 is disposed of.

I.A. 7253/2022 (for additional documents)

3. This is an application seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter, 'Commercial Courts Act'). The Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act.

4. I.A. 7253/2022 is disposed of.

CS (COMM) 301/2022 & I.A. 7251/2022(for stay)

5. The present suit seeking permanent and mandatory injunction has been filed by the Plaintiff- Head Digital Works Pvt. Ltd. The Plaintiff is engaged in the business of designing and developing software related to games of skill, deploying and maintaining an online gaming website and a mobile application via the internet. It operates and provides the said services through its website www.a23.com and its mobile application 'A23'. The present suit has been filed by the Plaintiff to protect its marks 'Ace2three' and 'A23' which are registered as trademarks under various classes. The said marks are registered trademarks of the Plaintiff since 2006 and 2020 respectively. The Plaintiff's marks relate to online gaming platforms operated and controlled by the Plaintiff and are stated to represent India's first ever online rummy platform. The Plaintiff is aggrieved by the use of the marks 'A23' and 'Ace2three' as 'keywords' by the Defendant on the Apple Application Store (hereinafter 'App Store'). It is the case of the Plaintiff that in February, 2022 it came to the knowledge of the Plaintiff that the Defendant was using Plaintiff's mark as 'keywords' on the App Store.

6. The submission of Mr. Sajan Poovayya, ld. Senior. counsel appearing for the Plaintiff is that when any user searches for 'A23' or 'Ace2three' on the App Store the first result in the advertisement section of the search result is that of the Defendant's app 'WinZO Games'. The following screenshots are relied upon by ld. Sr. counsel for the Plaintiff:

7. It is, further, submitted by the ld. Senior Counsel that a case has already been filed by the Defendant against the Plaintiff herein being CS(COMM) 613/2021 titled Tictok Skill Games Private Limited. v. Head Digital Works Private Limited in respect of use of the marks 'WinZO', 'WinZO Games' as a meta tag/title tag by the Plaintiff herein. In the said case, the Court has granted an injunction restraining the Plaintiff herein from using the mark/name 'WinZO'/'WinZO Games' or its variants on its website and web advertisements. The ld. Senior Counsel also relies upon the recent order dated 27th April, 2022 passed by this Court in CS(COMM) 268/2022 titled MakeMyTrip India Private Limited v. Booking.com B.V.

8. Ms. Shilpa, ld. Counsel appearing for the Defendant submits that without prejudice to the rights and contentions of the Defendant on merits, the Defendant's stand is that it has not and does not intend to use the Plaintiff's marks 'A23' or 'Ace2three' as an adword, keyword, or metatag.

9. Recently in MakeMyTrip (supra), on the issue of use of trade marks as a keyword on search engines, this Court observed as under:

31. This Court is of the opinion that the use of the mark 'MakeMyTrip' as a keyword through Google Ads Program by one of its major competitors, Booking.com is infringing use under Sections 2(2)(b), 29(4)(c), 29(6)(d), 29(7) and 29(8)(a) of the Act. It is now well settled in India that use of a registered mark by competitors even as metatags would be infringement, though the same may be invisible to a user as held in DRS Logistics (Supra). The relevant paragraph reads as under:

86. Having noted the above Judgments, it is clear that the use of the mark as meta-tags was held to be infringement of trademark. It follows, that invisible use of trademark to divert the traffic from proprieto