16 February 2022Trademarks

Google wins keyword ad dispute

The Supreme Court of Georgia in the US has affirmed a win for Google, with its refusal to revive allegations that the tech company improperly profited off the name “Edible Arrangements” in its keyword advertising.

In a ruling handed down yesterday, February 15, the court rejected a lawsuit filed by online retailer Edible Arrangements, a company that specialises in delivering fresh fruit bouquets and other food gifts.

No entitlement

According to Georgia’s highest state court, Edible Arrangements did not show that it is entitled to profits that Google earns through its keyword advertising programme or that Google has been unjustly enriched at Edible Arrangements’ expense.

In 2018, Edible Arrangements sued Google, alleging that the tech company’s monetisation of the name “Edible Arrangements” without permission allowed Google to improperly profit off Arrangements’ trade name and goodwill.

A Georgia trial court and appeals court both dismissed the claims, prompting Edible Arrangements to appeal against the decision to the state’s Supreme Court.

Before the Supreme Court, Arrangements insisted that the case doesn’t involve trademark infringement claims, but that it was challenging Google’s direct sale of its proprietary name and goodwill to competitors.

The online retailer alleged four claims: theft of personal property, conversion, money had and received, and violations of Georgia’s Racketeer Influenced and Corrupt Organizations Act.

On its first claim, Edible Arrangements argued that Google had committed theft by selling its trade name and the goodwill and reputation associated with that name without permission to others and keeping the proceeds for itself.

Theft claims couldn’t survive

The online retailer did not allege that the use of the trade name in the keyword advertising programme had caused any confusion, and disclaimed in the complaint that it is “seek[ing] any . . . relief for any consumer confusion”.

In considering the claim, the Supreme Court said Edible Arrangements’ theft claims couldn’t survive without allegations of market confusion.

It added: “We see no reason to extend civil theft in Georgia to encompass the mere use of a trade name, without implicating consumer confusion, when doing so would subvert Georgia trademark law, federal trademark law, and the common law of trademark infringement.”

The Supreme Court dismissed all four of Edible Arrangements’ claims.

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