WALLINGFORD: Edible Arrangements is hoping to deliver a bitter taste to Google as it files a federal lawsuit against the company in Connecticut, objecting to Google using its Edible Arrangements trademark to aid competitors in search results.
The company is suing the search giant for $209 million in damages, asking $200 for trademark infringement and $9 million for its estimate of sales made by Google to the competitors.
A search for Edible Arrangements returned results for 1-800-flowers, berries.com, fruit bouquets.com advertising, all selling fruit basket deliveries similar to Edible Arrangements products.
The EA complaint claims,"the net result of this display is that consumers are deceived into thinking competitive products come from or are associated with Edible Arrangements, Edible Arrangements' valuable trademark is placed in jeopardy, and Google profits handsomely."
Google policy will sometimes restrict the use of trademarks when the parties are in a legal dispute over the trademark, but it does not restrict trademarks used as keywords to aid an advertiser in obtaining a search related to a user that is specifically looking for a particular business.
Simply put by EA – Searching Fruit Baskets for Delivery, okay for wide open advertising results, search Edible Arrangements not okay to show competitor.
“We don’t investigate or restrict trademarks as keywords,” says Google’s ad policy.
The issue of trademark infringement by Google in its advertising has not been completely settled in court. The sales of a single keyword search being worth potentially $9 million, demonstrates a loss by Google could have a fundamental effect on its sales.
A 2012 Federal case Rosetta Stone Ltd. v. Google, Inc. in the Fourth District Appellate Court sided against a decision by a lower court issuing a summery judgment supporting Google’s use. The Appellate court overturned the lower court sending it back for trial, but the case was settled between the parties before a final ruling. The lower court was instructed to look for confusion by consumers and Google’s intent to use the keywords in a deception, among other issues.
The settlement left many to believe that Google would be the eventual winner.
EA has not commented outside of its claim but presumably the company was aware of the full nature of the existing rulings and what to expect in court.
If the court however follows the same procedure it could lead to a flood of lawsuits against Google by companies seeking a trial for trademark infringement and damages. A settlement with Edible Arrangements could itself lead to new suits against Google.