The rapid expansion of e-commerce has brought intellectual property (IP) protection to the forefront, particularly regarding trade mark infringement and the liability of online platforms. The legal saga between Puma SE and IndiaMART Intermesh Ltd. (“IIL”), which culminated in an appeal to a Division Bench of the Delhi High Court, offers critical insights into these evolving legal frontiers in India.

1. Core Legal Principles in Focus: Before examining the specifics of the case, set out below are the core concepts:
   1. What is “Trade Mark Infringement”: This occurs when an unauthorized party uses a mark identical or deceptively similar to a registered trademark for identical or similar goods or services, causing confusion amongst customers about the origin of the goods. 
   2. Ambit of “Use” Under the Trade Marks Act, 1999: The concept of “use” of a trademark extends beyond mere physical affixation. The term “use” of a trademark is broadly interpreted to include even an unauthorized visual representation. This broader interpretation is crucial in the digital context where marks might be used in non-traditional ways (e.g., in keywords or in dropdown menus). 
   3. Intermediary Liability: Intermediaries are liable for third party content unless they comply with the safe harbour provisions under Section 79 of the IT Act, 2000. 
   4. Safe Harbour Principle Under the IT Act: Section 79 of the Information Technology (IT) Act, 2000, provides a “safe harbour” to online intermediaries, shielding them from liability for third-party content, if such intermediary’s role is limited to mere provision of access to a communication system for third-party information, without initiating the transmission, selecting the receiver, or modifying the content in any manner. Additionally, the intermediary is required to observe due diligence in discharging their duties under the Act and adhere to any guidelines prescribed by the Central Government. This protection is lost if the intermediary has “conspired or abetted or aided or induced” an unlawful act or fails to expeditiously remove content upon receiving “actual knowledge” of an unlawful act. The corresponding IT Rules, 2021 further elaborate on these due diligence requirements.
2. PRECEDENT SETTING: GOOGLE LLC V. DRS LOGISTICS (P) LTD. (2023)

The Google LLC v. DRS Logistics (P) Ltd. (2023 SCC OnLine Del 4809) was a crucial precursor, significantly shaping the legal discourse on online intermediary liability and trademark infringement in India.

2.1 Brief Facts: DRS Logistics (P) Ltd. (DRS), a leading packing and moving service provider with the well-known trade mark “Agarwal Packers and Movers”, sued Google LLC. DRS alleged that Google’s “Ads programme” allowed third-party competitors to bid on DRS’s trade mark as a keyword. When users searched for “Agarwal Packers and Movers,” these competitors’ advertisements would appear at the top of the search results, often marked “Ad”. DRS argued this led to diversion of traffic and confusion, infringing their trademark. Google contended that using trademarks as keywords was not “use” under the Trade Marks Act, that any “use” was by the advertiser, and that Google was protected by Section 79 of the IT Act as an intermediary.

2. Issues: The Division Bench of the Delhi High Court considered four principal questions:

1. Whether the use of trademarks as keywords amounts to “use” for Section 29 of the TM Act.
2. If so, whether such use is by the advertiser or by Google as well.
3. Whether the use of the trademark as keywords per se amounts to infringement.
4. Whether Google is absolved of liability under Section 79 of the IT Act.

3. Analysis and Crux of the Judgment

1. “Use” of Trademark: The court held that the use of a trademark as a keyword for displaying advertisements does amount to “use” in advertising under Trade Mark Law. It clarified that “use” is not limited to visual representation on goods but includes use “in any other relation whatsoever” to goods or services. Importantly, it distinguished between “use of a mark as a trademark” (which indicates source) and “use of a mark” in relation to goods or services. The Court found that keyword use was the latter, for identifying potential customers, not primarily indicating source.

2. Google’s Role as “Active Participant”: The court rejected Google’s claim of being a passive intermediary. It found Google to be an “active participant” because it “actively encourages and suggests use of the keywords” , determines which ads are displayed using proprietary algorithms (even if automated) , and monetizes the use of these keywords through its “Pay Per Click” (PPC) model.

3. Infringement: The court held that the mere use of a trademark as a keyword does not per se constitute infringement under Trade Mark Law unless it results in “real likelihood of confusion”. It emphasized that in a competitive market, offering alternatives to consumers searching for a specific brand is not inherently illegal. The crucial factor was whether the ad or link displayed causes confusion, not the invisible keyword itself. 

4. Safe Harbour: The court concluded that Google was not entitled to safe harbour under the IT Act. This was because Google was deemed an “active participant” in its Ads programme, actively promoting and monetizing trademarks as keywords. Google’s role extended beyond merely providing access to a communication system ; it effectively “sells its usage” of trademarks and selects the recipients of information.

The ruling in Google LLC v. DRS Logistics (P) Ltd. meant that while mere use of a trade mark as a keyword doesn’t automatically lead to infringement a registered trademark, if Google’s active role in selecting and monetizing these keywords leads to consumer confusion through the displayed ads, it loses its intermediary protection. The Court directed Google to investigate complaints and remove/block ads found to be infringing.

3. PUMA SE V. INDIAMART INTERMESH LTD. (2024)- the initial verdict

3.1 Brief Facts: Puma SE, a globally recognized sportswear brand with well-known trade mark status, discovered that IndiaMART’s B2B online platform was displaying listings for counterfeit goods bearing the Puma’s Marks. Sellers on IndiaMART could select “Puma Shoes” from a dropdown menu when registering their products, without any prior verification from IndiaMART regarding the authenticity of the goods or the seller’s credentials. Puma argued that this facilitated infringement and passing off, and despite takedown notices, new infringing listings would quickly reappear.

3.2 Issues: The Single Judge primarily addressed two questions:

1. Was IndiaMART infringing Puma’s trade marks or passing off counterfeit goods? 
2. If so, was IndiaMART entitled to safe harbour under Section 79 of the IT Act? 
3. Analysis and Crux of the Judgment
   1. “Use” of the Trademark: The court held that IndiaMART’s act of providing “Puma” as an option in the dropdown menu for sellers constituted “use” of the trade mark. It reasoned that even if this was a “backend” feature, it was a “visual representation” and intended to indicate a “connection in the course of trade” between the seller’s goods and the Puma brand, thus qualifying as “use as a trade mark” and equating it to “use in advertising” since choosing the option directly led to products being displayed when “Puma” was searched.

2. Active Participation and Infringement: The Single Judge found IndiaMART to be an “active participant” in the infringement, analogous to Google in DRS Logistics. By offering prominent brand names like Puma (which are “select brands of reputed manufacturers” chosen by IndiaMART ), IndiaMART was deemed to be “actively suggesting the choices” and facilitating sellers, including counterfeiters, to pass off their goods as genuine. The court emphasized that IndiaMART’s business model monetized increased listings, thus making it “derive a distinct advantage by use of registered third party trade marks as drop down options”. This direct connection to the sale of counterfeit goods led to a “likelihood of confusion” among consumers and “detriment” to Puma’s well-known mark. The crucial distinction from DRS Logistics was that IndiaMART’s dropdown enabled counterfeiters to masquerade as genuine dealers, directly defrauding consumers , whereas Google’s ads merely offered alternatives.

3. Safe Harbour: IndiaMART was denied safe harbour under the IT Act. The Court reasoned that IndiaMART’s function “much transcends mere ‘providing’ of ‘access'” , as sellers effect sales and IndiaMART pockets part of the proceeds. Further, by providing specific brand options, IndiaMART “initiates and selects the receiver of the transmission.” Most importantly, IndiaMART failed to observe “due diligence” under the IT Rules. Simply having terms and conditions or an undertaking was insufficient; the lack of prior verification of sellers’ genuineness meant IndiaMART was “aiding commission of the unlawful act of counterfeiting.” The Single Judge consequently issued an interim injunction restraining IndiaMART from offering Puma’s trade marks as search options in its dropdown menu and ordered the immediate takedown of infringing listings upon notice.
4. INDIAMART INTERMESH LTD. V. PUMA SE (2025)- the appeal

4.1 Issues Before the Court and Grounds for Appeal: IndiaMART appealed the Single Judge’s decision, primarily challenging the finding that offering “Puma” in the dropdown menu constituted trade mark infringement and that it was not entitled to safe harbour. IndiaMART argued that its platform was more akin to a “Yellow Pages Directory” than an e-commerce site directly involved in sales. It contended that providing brand names in a dropdown was merely a descriptive function to facilitate accurate listing, not an active inducement of infringement.

4.2 Issues Before the Court and Grounds for Appeal: 

1. The Single Judge erred in characterizing IndiaMART as an e-commerce website and in applying Google LLC v. DRS Logistics.
2. The use of “PUMA” in the dropdown menu was not “use as a trade mark.”
3. Such use did not cause likelihood of “confusion” or “detriment” under Trade Mark Law. 
4. The Single Judge erred in denying safe harbour under Section 79 of the IT Act, arguing IndiaMART was a passive intermediary and fulfilled due diligence.

4.3 Court Analysis and Final Judgment: The Division Bench partially overturned the Single Judge’s decision –

1. Nature of IndiaMART’s Platform (Revisited): The Division Bench clarified that the Single Judge’s “assumption that Indiamart is an e-commerce site on which goods and services are bought and sold” was “erroneous”. They concluded that IndiaMART functions primarily as a “B2B platform” , providing “listing services where buyers can get in touch with sellers”. It was “akin to Yellow Pages Directory” , where negotiations and transactions occur directly between buyers and sellers, “without the involvement of IIL or its platform”. This was a fundamental re-evaluation of IndiaMART’s role.

2. “Use” of Trademark in Dropdown (Revisited): The Division Bench, while acknowledging that offering “PUMA” in a dropdown does constitute “use” under the Trade Marks Act, disagreed with the Single Judge’s conclusion that this per se amounted to a dishonest business practice or active aiding and abetting. They found “no grounds for the allegations that IIL by mentioning an option regarding description of goods by brand names encourages persons to use the same”. The purpose of such dropdowns was seen as functional: to “encourage the sellers to describe its product more precisely” and avoid misspellings for search efficacy. The Division Bench held that IndiaMART “does not use the trade mark to describe the goods of the seller, but to describe the goods associated with the trademark”. Thus, Section 29 of the TM Act was found not applicable insofar as IndiaMART provides the option.

3. No Active Aiding or Abetting (Unless Notified): The Court found that they were unable to read any intent on the part of IIL to encourage listing of counterfeit Puma Products by offering the sellers an option to choose a specific description. They distinguished this from DRS Logistics, where Google’s keyword bidding system actively influenced the display of rival ads. For IndiaMART, the sellers’ description of products as Puma products constituted infringement, but this was not imputed to IndiaMART as active aiding merely by providing the dropdown. Active aiding would require an “element of shared intent”.

4. Safe Harbour Maintained (with Conditions): The Division Bench held that IndiaMART could indeed claim safe harbour under Section 79 of the IT Act. They found that IndiaMART’s function was “to provide users access to a B2B platform containing information placed by the suppliers”. They also found no prima facie evidence that IndiaMART “initiates and selects the receiver of the transmission”. However, the court sustained the direction that IndiaMART must forthwith take down all infringing listings containing Puma marks once these are specifically brought to its notice. The court stressed that due diligence requirements under the IT Rules still applies, and failure to act on specific notifications or allowing the same seller to relist after a takedown due to IP infringement would lead to IndiaMART losing its safe harbour. They suggested prominently indicating that “verified” sellers only imply phone number verification, not product genuineness. 

5. CONCLUSION

The judgment in IndiaMART Intermesh Ltd. v. Puma SE represents the definitive stance in this particular dispute. It essentially carves out a distinction between how different types of online platforms function and their corresponding responsibilities. While Google, with its keyword-based advertising model directly influences displayed ads and revenue, faced stricter scrutiny, IndiaMART, characterized as a listing directory, was given more leeway on its internal functioning (like dropdown menus).

However, the most important takeaway for all online intermediaries remains consistent: they cannot claim passive immunity if platform uses vilate laws. The “safe harbour” is conditional upon proactive “due diligence,” which most critically includes a robust and responsive mechanism for taking down infringing/ illegal content when specifically notified. This puts the onus on trade mark owners to actively monitor and notify platforms on infringement and to act swiftly on such notifications.

Please note: The information in this article is provided for general understanding and does not constitute legal advice. If you need any specific advice or further details, please reach out to us directly at:

Ms. Vidyut Bedekar

Co-founder & Practice Head, General Corporate, M&A, IP, Start-Ups

Email: vidyut@tlaindia.com

Ms. Diya Singh

Associate, General Corporate and IP

Email: diya@tlaindia.com