Delhi High Court - Orders
Appy Pie Llp vs Engineer.Ai India Pvt. Ltd. & Ors on 15 May, 2023
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 467/2022 & CCP(O) 69/2022, I.A. 10589/2022,
I.A. 9362/2023, CRL. MA. 2937/2023
APPY PIE LLP ..... Plaintiff
Through: Mr. Chander Mohan Lall, Sr.
Adv. with Mr. Himanshu Bajaj and Ms.
Ananya Chug, Advs.
versus
ENGINEER.AI INDIA PVT. LTD. & ORS. ..... Defendants
Through: Ms. Neena Nagpal, Mr. Malak
Bhatt, Ms. Supriya Julka, Mr. Nikhil Arora
and Mr. Vishvendra Tomar, Advs. for D-1 to
D-4
Mr. Neel Mason, Mr. Ankit Rastogi, Mr.
Vihan Dang, Ms. Aditi Umapathy and Ms,
Pragya Jain, Advs. for D-5
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 15.05.2023
CCP(O) 69/2022
1. This petition alleges contempt, by Defendants 1 to 4, of the judgment dated 20th July 2022, passed by a Coordinate Bench of this Court in the present proceedings.
2. The plaintiff is the proprietor of the registered mark "APPY PIE", which provides an online platform to businesses and professionals for creating their own mobile applications. The plaintiff provides its services and products through its website www.appypie.com.
Signature Not Verified Signed By:KAMLA CS(COMM) 467/2022 Page 1 of 9 RAWAT Signing Date:16.05.2023 13:05:353. The grievance of the plaintiff, as captured in para 6 of the order dated 20th July 2022, is that the defendant provides a competing service on its website www.builder.ai, by booking the thread 'APPY PIE' on the Google Ad Program and using the said thread intermittently since September 2020. Thus, if a user conducts a Google search for 'APPY PIE', the Defendants' website was being reflected. Thus, alleged the plaint, customers who wanted to visit the plaintiff's website ended up visiting the Defendants', thereby resulting in diversion of business.
4. Para 8 of the order dated 20th July 2022 reads thus:
"8. On behalf of Defendant Nos. 1 to 4-Mr. Saurabh Kripal, ld. Sr. Counsel, submits that since the filing of the suit, the Defendants have actually deactivated their entries on the Google Ads Program and the said two advertisements are no longer visible on Google Search. He however submits, that the Plaintiff and the Defendants have businesses internationally and the legal position in other countries being different, the order, if any, passed by this Court restraining Defendant Nos. 1 to 4 from using 'APPY PIE' on the Google Ads Program ought to be restricted to India. He further submits that the deactivation of the impugned entries has been done only in the territory of India and Defendant Nos. 1 to 4 are, in fact, in the process of filing litigations against the Plaintiff in USA. Mr. Chitale, Id. Sr. Counsel appearing for the Plaintiff, submits that he is not aware of any litigation having been filed by Defendant Nos. 1 to 4 against his client."
5. The order dated 20th July 2022 concludes with the following direction:
"11. It is clear from the submissions made, that Defendant Nos. 1 to 4 are no longer using the marks 'APPY PIE' or 'APPY' either in the title text or in the Google Ads Program and have deactivated the impugned links. It is directed that this status quo shall be maintained by Defendant Nos. 1 to 4 and the said Defendants shall not reactivate their sponsored advertisements with the Google Ads Program with respect to the marks 'APPY' or 'APPY PIE' or other marks which are identical/confusingly similar to the said marks, or use the said marks as Ad words on the Google Ads Program, insofar as the territory of India is concerned."Signature Not Verified Signed By:KAMLA CS(COMM) 467/2022 Page 2 of 9 RAWAT Signing Date:16.05.2023 13:05:35
6. Mr. Lall, learned Senior Counsel for the plaintiff/petitioner, submits that the requirement of the impugned order was that if one provided a Google search of "Appy" or "Appy Pie" or any other identical or confusingly similar mark, the website of Defendants 1 to 4 ought not to have been thrown up as an advertised search result. However, it is alleged that, even after the passing of the impugned order, if one were to give a search for Appy Pie App maker', 'Appy Pie App Developer', 'Appy Pie App Builder', 'Appy Pie make an app ', 'Appy Pie App Creator', 'Appy Pie Create an App', and Appy Pie.com etc., the defendants' website turned up as the first advertised result. Thus, Mr. Lall submits that there is clear contumacious and wilful disobedience of the direction contained in para 11 of the judgment/order dated 20th July 2022, which mandates that, if a Google search is given as the first thread in the Google AdWords program, not only for "Appy Pie" or "Appy", but also for any thread which is confusingly or deceptively similar to "Appy" or "Appy Pie", the defendants' website would not be thrown up as a search result.
7. Mr. Lall has taken me through the technical literature relating to the Google Ad Program, which has been filed with an additional affidavit dated 1st May 2023, under index of the same date. He has particularly invited my attention to the following passage from the said technical literature:
"About negative keywords Expert mode Smart mode To provide a comprehensive and consolidated view of your content targeting and make content targeting management and optimization simpler, you'll see the following improvements in Google Ads:
All types of content targeting can now be found under "Content" in the side navigation:Signature Not Verified Signed By:KAMLA CS(COMM) 467/2022 Page 3 of 9 RAWAT Signing Date:16.05.2023 13:05:35
"Topics", "Placements", "Display/Video keywords", and "Exclusions" for all types of content targeting are now categorized under the "Content" tab in the side navigation menu. For "Exclusions", click the drop-down arrow to the right of the term "Exclusions" to select exclusions for topics, placements or Display/Video keywords.
Soon, you'll see further improvements:
• "Topics", "Placements", "Display/Video keywords"
will be consolidated into a single "Content" page and report. Exclusions will also be consolidated into a single report in the same page ("Content").
• Your ads will target any of your selected content in your ad group. For example, if you targeted "bikes" as a topic and "cycling" as a Display/Video keyword, your ads will show on content that matches either.
Until your account is migrated, we recommend that you only use one content targeting method (topics, placements, OR Display/Video keywords) per ad group. Before the upcoming changes, combining methods can limit campaign performance.
Negative keywords let you exclude search terms from your campaigns and help you focus on only the keywords that matter to your customers. Better targeting can put your ad in front of interested users and increase your return on investment (ROI).
This article explains how negative keywords work and when they might be useful. You can then learn more about how to Add negative keywords to campaigns.
How they work One key to a highly targeted campaign is choosing what not to target.
When selecting negative keywords for search campaigns, look for search terms that are similar to your keywords, but might cater to customers searching for a different product. For example, let's say you're an optometrist who sells eyeglasses. In this case, you may want to add negative keywords for search terms like "wine glasses" and "drinking glasses."
Negative keywords won't match to close variants or other expansions. For example, if you exclude the negative broad match keyword flowers, ads won't be eligible to serve when a Signature Not Verified Signed By:KAMLA CS(COMM) 467/2022 Page 4 of 9 RAWAT Signing Date:16.05.2023 13:05:35 user searches red flowers, but can serve if a user searches for red flower.
If you're using Display or Video campaigns, negative keywords can help you avoid targeting unrelated sites or videos, but keep in mind that negative keywords work differently for Display and Video campaigns than they do for search. Depending on the other keywords or targeting methods in your ad group, some places where your ad appears may occasionally contain excluded terms. For Display and Video ads, a maximum of 5,000 negative keywords is considered. You can also avoid targeting unrelated sites or videos by implementing site category options and content exclusions.
Negative keywords may provide limited coverage of content shown in apps. The keywords for apps are categorized by the app's main function rather than the content shown within the app.
Types of negative keywords For search campaigns, you can use broad match, phrase match, or exact match negative keywords. However, these negative match types work differently than their positive counterparts. The main difference is that you'll need to add synonyms, singular or plural versions, misspellings, and other close variations if you want to exclude them.
For Display campaigns, a set of negative keywords will be excluded as an exact topic. Ads won't show on a page even if the exact keywords or phrase are not on the page explicitly, but the topic of the content is strongly related to the excluded set of negative keywords.
For example, a set of negative keywords like "women's pants" would block bidding on a page with content about women's jeans, even if the exact phrase "women's pants" did not appear on the page. However, we would not generalize beyond the concept of women's pants to other kinds of women's bottoms (i.e. skirts) or men's slacks. This is different from how we would treat a positive keyword, e.g. shoes, which we would also match to a broader category like footwear.
Negative broad match This type is the default for your negative keywords. For negative broad match keywords, your ad won't show if the search contains all your negative keyword terms, even if the terms are in a different Signature Not Verified Signed By:KAMLA CS(COMM) 467/2022 Page 5 of 9 RAWAT Signing Date:16.05.2023 13:05:35 order. Your ad may still show if the search contains only some of your keyword terms.
Example Negative broad match keyword: running shoes Search Could an ad show?
blue tennis shoes running shoe blue running shoes shoes running running shoes Negative phrase match For negative phrase match keywords, your ad won't show if the search contains the exact keyword terms in the same order. The search may include additional words, but the ad won't show as long as all the keyword terms are included in the search in the same order. The search may also include additional characters to a word and the ad will show even when the rest of the keyword terms are included in the search in the same order.
Example Negative broad match keyword: running shoes Search Could an ad show?
blue tennis shoes running shoe blue running shoes shoes running running shoes Negative exact match For negative exact match keywords, your ad won't show if the search contains the exact keyword terms, in the same order, without extra words. Your ad may still show if the search contains the keyword terms with additional words.
Example Negative exact match keyword: [running shoes] Signature Not Verified Signed By:KAMLA CS(COMM) 467/2022 Page 6 of 9 RAWAT Signing Date:16.05.2023 13:05:35 Search Could an ad show?
blue tennis shoes running shoe blue running shoes shoes running running shoes
8. Mr. Lall's submission, relying on the aforenoted literature, is that the only way in which the compliance with the impugned order could be ensured by the defendant is by adding the marks "Appy,"
"Appy Pie," "appy pie," "appiepie," "appypie.com and "appie pie" as exact, phrase or broad matches in the shared negative keywords lists at the ad group level, campaign level, or account level. Where a search is conducted using "Appy", "Appy Pie" or any deceptively or confusingly similar word or thread, he submits that the defendants' website would not turn up as one of the advertised searches. Mr. Lall submits that the aforesaid knowledge is elementary to anyone dealing with the Google Ads program. Defendants 1 to 4, therefore, according to him, were well aware of what had to be done to ensure compliance with the impugned order.
9. Owing to the fact that the defendant has not followed this course of action - which, according to Mr. Lall is the only course of action which could be followed, for compliance with the order dated 20th July 2022 to be ensured, even today, or at least on the date when the present contempt petition was filed, a search, on the Google, of the thread "Appy Pie App maker", Appy Pie Application developer", Appy Pie App builder" would result in the Defendants' 1 to 4 website being thrown up as the first advertised search. This, he submits, Signature Not Verified Signed By:KAMLA CS(COMM) 467/2022 Page 7 of 9 RAWAT Signing Date:16.05.2023 13:05:35 clearly infringes the order dated 20th July 2022 and, in fact, results in undoing what the order intended to do.
10. Mr. Lall has drawn my attention to para 5 of CRL MA 2937/2023, filed by the defendant under Section 340 of the Code of Criminal Procedure, 1973, which, according to him, actually incriminates the said defendants. The said passage reads thus:
"5. In arguendo, the Defendant No 1 has stopped bidding on all search keywords that contain 'Appy' in effect from 20.07.2022 and deactivated all such entries on the Google Ads Program. Moreover, the Defendant No 1 bas added exact match 'appypie' as a negative keyword on 20.07.2022. An exact match negative keyword is utilized in Google Ads to present the display of ads when a user's search query includes exact keyword. Thereafter, the Defendant No 1 applied for broad match term 'Appy' as a negative keyword globally on 26.07.2022. The addition of 'Appy' as a negative keyword in a broad match type means that the ad will not be triggered by any search terms or phrases that contain the word 'Appy including close variants like synonyms, misspellings, and related terms (Document 2)"
11. Instead of placing the correct keywords in the negative keywords list, Mr. Lall points out that Defendants 1 to 4 merely added "appypie" as an exact match in the negative keywords list. This, he, submits, did not serve any purpose, as the result would only be that the defendant's website would not turn up if "appypie" as an exact match was provided as a Google search thread.
12. Thus, Mr. Lall submits that the Defendants 1 to 4 have, by following a procedure which, to their own knowledge, would continue to reflect the defendants' website as a search result when a search is conducted using search threads involving Appy Pie with other similar names, with or without any suffixes or prefixes, clearly violated the order dated 20th July 2022, rendering it liable to the proceeded against, under Order XXXIX Rule 2A of the CPC.
Signature Not Verified Signed By:KAMLA CS(COMM) 467/2022 Page 8 of 9 RAWAT Signing Date:16.05.2023 13:05:3513. Issue notice, returnable on 1st June 2023.
14. Notice is accepted, on behalf of Defendants 1 to 4, by Ms. Neena Nagpal and on behalf of Respondent 5, by Mr. Neel Mason, respectively.
15. Reply, if any, be filed positively within 10 days from today with an advance copy to learned Counsel for the plaintiff/petitioner who may file rejoinder thereto, if any, before the next date of hearing.
16. The reply would also answer the contentions of Mr. Lall as orally advanced and as recorded in the order passed today.
C. HARI SHANKAR, J.
MAY 15, 2023 dsn Signature Not Verified Signed By:KAMLA CS(COMM) 467/2022 Page 9 of 9 RAWAT Signing Date:16.05.2023 13:05:35