Notable case: Edible International v Google

A trademark is a symbol or phrase that identifies who produced a product. When a company starts using a trademark to brand its products, it is granted certain exclusive rights to use the trademark. The company can register the trademark with the United States Patent and Trademark Office to strengthen the company’s claim to the trademark. When someone other than the trademark owner uses the trademark to brand products, that is considered trademark infringement. The purpose of trademark law is to protect consumers from inferior quality goods. Trademark law grants a trademark owner the right to sue for trademark infringement, to prevent consumer confusion about who produced a certain product.

Trademark law in the United States was adopted well before the internet was a common household service. The internet raises new issues which trademark law struggles to deal with.

Many consumers purchase products on the internet. To find the product they are looking for, consumers typically use a search engine. A search engine makes a list of millions of websites, indexes those sites based on keywords and then scores the websites based on proprietary algorithms. When a consumer uses a website to find a product, the consumer enters keywords, and the search engine returns a list of the most relevant websites based on the keywords.

Search engines frequently display advertisements next to the search results. The advertisements displayed with the search results are based on the keywords entered by the consumer also. But unlike the search results which are displayed based on the relevance of the website, advertisements are displayed based on how much an advertiser is willing to pay. Advertisers get to choose which keywords will trigger their advertisement and how much money the search engine will be paid for displaying their advertisement.

Search engines typically have rules about the content of the advertisements. One of the rules is that advertisements may not include the trademarks of other companies. The reason search engines will not let advertisers use other company’s trademarks in their advertisements is because such behavior could lead to consumer confusion and a lawsuit from the trademark owner.

However, search engines will allow advertisers to choose trademarks as keywords. This means that an advertiser can pay the search engine to display their advertisement when a consumer searches for a trademark. The trademark is not displayed in the advertisement, but an advertisement for a competitor is being displayed every time a trademark is searched for.

Is this trademark infringement? Edible Arrangements believes this behavior is trademark infringement and is suing Google. Edible Arrangements is a company that delivers decorative fruit baskets and other treats to consumers. Google is an internationally recognized leader in the search engine industry. One of Google’s revenue streams comes from selling advertising on its search engine. A number of Edible Arrangement’s competitors purchased advertising space on Google’s search engine which would be triggered when a consumer search for Edible Arrangements. Edible Arrangements took exception to this and filed a lawsuit in Connecticut federal court. The complaint requests that Edible be awarded a judgement of $209 million for violations of the Lanham Act and trademark infringement. The case is – Edible International, LLC et al v. Google, LLC (3:18-cv-00216)

It is interesting to note that this case is similar to a case Edible Arrangements filed against their competitors in 2014 which was later settled.

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