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NDCA Dismisses Restaurants’ TM Case Against Google Search Result Display

Google's logo on its headquarters.

Mountain View, California, USA - March 29, 2018: Google sign on the building at Google's headquarters in Silicon Valley . Google is an American technology company in Internet-related services and products.

An opinion from the Northern District of California issued late last week found in favor of Google and against the restaurants suing it over trademark infringement, counterfeiting, false association, and false advertising. Last Friday, Judge Vince Chhabria found all causes of actions wanting and granted the plaintiffs 21 days to amend after citing possible ethical concerns on part of the 12 lawyers who signed the amended complaint for cropping out a portion of a screenshot used against Google.

“The plaintiffs in this case don’t like how Google facilitates online orders from their restaurants,” the court explained. Specifically, the Florida-based Mexican franchises contended that Google’s search result display confuses customers by giving them the impression that eateries endorse or sponsor the online showcase, when in fact, Google uses the tactic to increase clicks and drive advertising revenue. In addition, the plaintiffs alleged that Google diverts traffic from restaurants’ websites.

Google moved to dismiss the complaint in August.

The opinion dealt with several theories, the first of which was that Google’s “Order Online” or “Order Delivery” button is misleading because it is near the restaurant’s name and surrounded by links that would otherwise directly connect the consumer with the restaurant.

The court went on to describe the entirety of the webpage in question, ultimately finding no facts to support false association or false advertising. Calling use of the restaurant’s name a “textbook example of nominative fair use,” the court pointed out that Google “uses only the plain name, not a stylized logo; and there is no improper suggestion of sponsorship or endorsement.”

As to the plaintiffs’ theory that Google diverts traffic to third-party delivery services, the court ruled that the facts were not consistent with false association or false advertising claims. Instead, Judge Chhabria found that Google’s use of the restaurant’s mark was once again nominative fair use as it did not improperly imply an association with the restaurant. Further, the plaintiffs’ counterfeiting claim was stripped away because, under the court’s reasoning, a customer who places an order gets food from the restaurant, not Google.

Lastly, Judge Chhabria considered the plaintiffs’ claims in the context of a landing page, which shows a list of options to place an order for pickup or delivery. While the court said it was “difficult to imagine how a page like this could support any of the plaintiffs’ claims,” it cited an even bigger problem: the plaintiffs’ omission of the page’s footer, which features a prominent Google logo, thereby undermining their theory that the page is misleading.

Noting that this could have been inadvertent, the court wrote that “cropping out such an important part of the page raises serious Rule 11 concerns about the twelve lawyers who signed the amended complaint.”

The plaintiffs are represented by Hausfeld LLP, Sperling & Slater P.C., and Keller Postman LLC and Google by Keker, Van Nest & Peters LLP.

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