Keyword infringement: Edible Arrangements files $209M trademark suit against Google

Google is being sued in federal district court in Connecticut by the company behind Edible Arrangements for trademark infringement and unfair competition. The central claim is that when users search for “Edible Arrangements” (or versions of that name), they’re seeing product ads for competitors, such as 1-800-Flowers.

The company is seeking more than $200 million in damages for lost profits and trademark infringement. The company claims that consumers are confused about which results are genuinely associated with Edible Arrangements and says it has received phone calls supporting that contention.

I have not seen the specific allegations in the complaint, and I was not able to replicate the allegedly infringing search results. It does not appear that the term “Edible Arrangements” appears in ad text for competing advertisers.

Google will review and restrict use of trademark terms in ad text where there is a dispute. However, it does not restrict use of trademarks as keywords: “We don’t investigate or restrict trademarks as keywords,” says Google’s ad policy.

The issue of trademarks being used as keywords in ad campaigns has been litigated multiple times in the past and courts have sided with search engines. To my knowledge, the issue has never been specifically litigated in the context of product listing ads, though the legal principles should be the same.

One major caveat is a 2012 Fourth Circuit case — the same circuit where Edible Arrangements’ action is filed — called Rosetta Stone Ltd. v. Google, Inc. In that case, the court partly overturned the lower court’s decision granting summary judgment for Google relying on a “use of trademarked keywords can’t be infringement” defense. The appellate court then sent the case back to the lower court for trial. But the case was settled, and the issue never went to trial.

The Rosetta Stone summary judgment ruling goes against the bulk of other decisions, but it does provide the possibility that Google can’t get out of the case on a motion and would have to go to jury trial. That risk makes settlement more likely. But were Google to do so, it might invite many more such lawsuits from brands.

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