• by Wendy Davis  @wendyndavis, February 7, 2018

Google has been hit with a lawsuit for allegedly duping consumers who search for Edible Arrangements by showing them ads for competitors.

Edible Arrangements' complaint, filed this week in U.S. District Court for the District of Connecticut, centers on product listing ads that appear on the right-hand side of the search results pages and include small graphic images. Above the ads is a link that takes people to a Google Shopping page.

"When users search for 'Edible Arrangements,' instead of being shown the customary information about Edible Arrangements in a Knowledge Panel appearing immediately to the right of the topmost search results ... they are instead shown 'product listing advertisements' that feature advertisements for, links to, and images of competitors’ products," Edible Arrangements alleges. "Google thus misleads consumers into making a 'connection' between Edible Arrangements and these competitors’ products."

Edible Arrangements alleges that it has received "numerous" phone calls from customers who mistakenly placed orders with competitors after using Google.

"Google’s unlawful conduct ... has caused the diversion of lawful sales away from Edible Arrangements and its franchisees to Edible Arrangements’ competitors, many of whom do not offer products that measure up to Edible Arrangements’ exacting quality standards," the company asserts.

The gift basket company's claims include trademark infringement and unfair competition.

Edible Arrangements's complaint specifically alleges that Google uses the phrase "Shop for Edible Arrangements" in the link taking people to Google Shopping. The gift basket company says that wording also contributes to consumer confusion.

But an exhibit attached to Edible Arrangement's complaint showed different language. The exhibit showed the wording "Shop for edible arr ...  on Google" above the link. 

Santa Clara University law professor Eric Goldman, who has closely followed lawsuits against search engines, notes that the phrase "edible arr..." differs from the brand name "Edible Arrangements" in potentially significant ways. He says it's not clear whether consumers interpret "edible arr..." -- which is lower-cased -- as meaning Edible Arrangements.

Goldman adds that the gift basket company's case might be strengthened if a consumer survey shows that shopping array on Google's results page confuses people.

Google allows trademarks to trigger AdWords ads, and sometimes allows trademarked terms to appear in the ad copy itself. The company's policies have resulted in other litigation in the past, but Google either prevailed in the prior cases or settled them.

Google's biggest loss in the area occurred in 2012, when a federal appellate court said a trial judge prematurely dismissed Rosetta Stone's allegations that its trademark was violated by Google's practices. The 4th Circuit Court of Appeals said Rosetta Stone should have been able to proceed to trial against Google. The companies ultimately resolved that case on confidential terms.