Welcome back to Legal Geek. This week, we review a recent federal lawsuit filed against Google in federal court claiming trademark infringement and dilution based on practices Google has established in its AdWords program.
Edible International is the owner and operator of the Edible Arrangements brand, well known for sending bouquets of candy and fruit as a competitor for flowers. If you conduct a Google search for Edible Arrangements, the company's primary competitors including Shari's Berries and 1-800-Flowers come up as links as well as Edible Arrangements itself. This is because those competitors have purchased the rights to appear in search results when the keyword term Edible Arrangements is searched by a user.
This is common practice for companies under the Google Adwords program, as it can be helpful to appear both when users search for you as well as your competition. However, Edible International argues that allowing competitors to buy such search rights based on its trademarked name has caused over $200 million dollars in damages thanks to customer confusion and damage or dilution to their trademark.
Thus, Google once again finds itself on the cutting edge of IP litigation that will help define the boundaries of such rights moving forward. Google has successfully pushed against copyright claims in the various Google Books cases, and this will be one of what may become a number of case studies on trademark law and how it interacts with online search engine practices.
The gray area comes in that Google is profiting off selling advertisements using the actual trademarks and slogans of companies not related to Google. That appears to be contrary to the goals of trademark law, as it can potentially lead to consumer confusion when competitors buy up the right to advertise using competition names and slogans as keywords. However, there is also a countervailing public interest to allow helpful information to be presented to users of software like search engines.
The case from Edible International makes out a number of different theories for liability, and as such, Google will have its work cut out to overcome and contest all of these theories. Of course, some of the claims may be removed by the court or simplified as the case continues through the early stages, but as currently written, this will be a landmark decision on the cutting edge or potential limits of brand protection.
The Bottom Line is, one of the aspects that makes Google a success as a company is the innovation and boundary-pushing it does, but such practices often lead to litigation as well. In the case of AdWords, Google appears to be profiting more than acting purely in the public interest, so if this case comes down to a close call of the equities, Google may lose this time. We will keep a pulse on this case and update it as decisions occur, as this is likely a case that could shoot up through appeal courts and possibly to the Supreme Court.
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