by Dennis Crouch
Edible IP v. Google (GA 2021)
This interesting case is pending before the Supreme Court of Georgia over the question of keyword advertising under Georgia law. The following comes from Edible’s brief:
Edible’s claim is simple. It owns valuable intangible property associated with the trade name “Edible Arrangements.” The law [of Georgia] protects its right to exclude others from trading on that name and its associated good will for profit. The Complaint alleges that when Google auctions off that name and the associated business goodwill, Google violates Edible’s rights to exclude others from its property and appropriates the value of Edible’s goodwill for itself. As a matter of fact, this is an illegal [theft-by-]taking, and Edible can introduce evidence within the framework of the Complaint to prove each cause of action.
The trial and appellate courts both sided with Google, holding that keyword advertising is akin to permissible sponsored product placement in grocery stores. The Supreme Court is set to hear oral arguments in the case on November 10, 2021.
Google argues that any decision in Edible’s favor would be contrary to federal trademark law and be in violation of the free speech provision of the First Amendment of the U.S. Constitution.
Google may have cleaned-up its advertising in the lead-up to the Supreme Court arguments. My search on Oct 18, 2021 revealed no ads showing up for “Edible Arrangements” but one of the top hits is a rhetorical question from Google “Is Edible Arrangements overpriced?”
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NOT a TM Case: A key aspect of the case is that Edible is not on suing trademark law. Rather the cause of actions center on state statutes involving theft of personal property. “Customer confusion is not an element of any of Edible’s claims.” Edible’s Brief. In its argument, Google argues for a bright line rule that Georgia courts cannot enforce rights to trade-names absent fraud, deception, or confusion. According to Google, any broader rights would impinge upon the company’s freedom to sell competitive advert-space tied to Edible’s name as protected by the First Amendment.
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Edible International, LLC is the company that franchises the basket delivery. The plaintiff here Edible IP, LLC is the company that owns the trademarks. Edible IP licenses the marks to Edible International. It is not clear to me the exact relationship between these two companies, but they are obviously related.
Edible International opened an advertising account with Google, and clicked “I agree” to Google’s terms that included an agreement to arbitrate any resulting disputes. The district court found this was binding on Edible IP, and that issue is also before the Georgia Supreme Court. Edible IP argues that it should not be bound by the actions of its Edible International relation.
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The International Franchise Association filed a brief in support of Edible: “Google’s advertising model is profiting directly from using the trade names and goodwill of established companies for profit. This use is antithetical to fair business practices and the law, and it should not be allowed.”