Monday, November 21, 2022

Google's "order delivery/takeout" results aren't misleading/TM infringement

Left Field Holdings v. Google LLC, 2022 WL 17072948, No. 22-cv-01462-VC (N.D. Cal. Nov. 18, 2022)

Short opinion, summarized by the opening paragraph:

The plaintiffs in this case don’t like how Google facilitates online orders from their restaurants. They try to articulate claims for trademark infringement, counterfeiting, false association, and false advertising. They don’t succeed, especially considering Rule 9(b)’s heightened pleading requirements for claims sounding in fraud.

The court analyzes in detail only the theory that the “Order Online” or “Order Delivery” button is misleading by itself “because it is near the restaurant’s name and is surrounded by links that would otherwise ‘directly connect the consumer to the restaurant,’” that is, the “Website” and “Call” links. But the “Directions” link is also right there and whether that would produce a direct connection is “debatable,” and so is a button to save the restaurant to one’s own Google account, as is a star rating and a blue link to “Google reviews,” “which are obviously not provided by the restaurant.” Thus, “[i]n context, the contested button is not false association or false advertising.”

The use of the restaurant’s name was “a textbook example of nominative fair use: There is no other way to identify the restaurant; Google uses only the plain name, not a stylized logo; and there is no improper suggestion of sponsorship or endorsement.”

The plaintiffs argued that “Order Online” or “Order Delivery” led users to a third-party delivery provider “unbeknownst to the restaurant.” “But the involvement of a delivery provider is not hidden from the user.” Plaintiffs’ screenshots showed that the delivery provider’s name was disclosed, and the complaint alleged that, if there are multiple delivery providers available, the user selects which to use. “Those facts are not consistent with false association or false advertising,” and using the restaurant’s name here was also nominative fair use. Nor was this counterfeiting: “A customer who places an order gets food from the restaurant, not Google.”

In cases where users didn’t get a “storefront” page to place an order, they would see a “landing” page offering “a list of options to place an order for pickup or delivery.” The court couldn’t imagine how this page would support any of the plaintiffs’ claims, especially since the plaintiffs’ submissions omitted the page footer and its prominent Google logo, undercutting any misleadingness argument. Yikes: “[I]n a complaint alleging misleading design choices, cropping out such an important part of the page raises serious Rule 11 concerns about the twelve lawyers who signed the amended complaint.”

But there’s leave to amend!


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