On Monday, Google LLC moved to dismiss a putative class action brought by a Florida restaurant chain, asking the court to reject the plaintiffs’ second bite at the apple. The case concerns links to online ordering options returned by Google search results, which the restaurants claim makes unfair use of their trademarks.
The plaintiffs’ complaint notes their operation of “Lime Fresh” franchises, offering online ordering directly through their website. The plaintiffs allege that in 2019, Google began illegally diverting business from them by placing an “Order Online” button in its “restaurant information box” located beneath restaurants’ tradenames. The button reportedly directs consumers to one of two different webpages: the so-called “Landing Page,” featuring links to delivery providers like Caviar or Uber Eats or the “Storefront,” where users “can place orders for the restaurant’s food items.’’
The complaint alleges that Google’s approach confuses customers, giving the appearance that eateries endorse or sponsor the online showcase — when Google is merely employing the tactic to increase clicks and by extension, advertising revenue. Further, by allowing online shoppers to place their order with delivery providers, with whom the restaurant has contracted to fulfill online food orders, Google drives online order traffic away from the restaurants’ own website.
In doing so, the plaintiffs claim that Google infringes their trademarks and trade names, in violation of the Lanham Act, which prohibits false advertising, false association, and counterfeiting.
This week’s motion argues that the plaintiffs’ new theories are equally as dubious as their prior theories, which Google characterizes as alleging that the popular search engine schemed with third-party delivery providers to dupe customers who use Google to search for Lime Fresh restaurants into ordering food using Google’s “Order Online” button.
Now, Google says that its use of their trade names is permitted under the nominative fair use doctrine, which “protects a defendant’s use of a trademark to reference the mark holder and its products and services.” The alleged use is exactly that, Google defends.
In addition, the motion to dismiss argues that the plaintiffs’ claims for false association and false advertising under the Lanham Act claims should fail because the litigants lack standing. Without alleging injury to their reputation or sales, Google says the plaintiffs do not allege that consumers suffered deception causing them to “withhold trade” from the restaurants.
Judge Vince Chhabria is presiding over the case in San Francisco, California.The plaintiffs are represented by Hausfeld LLP, Sperling & Slater P.C., and Keller Lenkner LLC; Google is represented by Keker, Van Nest & Peters LLP.
