• by Wendy Davis  @wendyndavis, February 15, 2022

Georgia's highest court has rejected gift basket company Edible Arrangements' bid to revive a lawsuit accusing Google of “theft” for allegedly allowing other companies to use the name “Edible Arrangements” to trigger search ads.

"We see no basis in Georgia statutory law for [the] claim that Google has appropriated the 'Edible Arrangements' trade name simply by using it in Google’s algorithms and keyword advertising programs," the Georgia Supreme Court said In a 30-page opinion issued Monday.

The ruling stemmed from a dispute dating to 2018, when Edible claimed in a federal lawsuit that its trademark was infringed by Google. Edible alleged that Google was duping consumers who search for “Edible Arrangements” by showing them ads for competitors.

U.S. District Court Judge Michael Shea in New Haven, Connecticut sent that matter to arbitration in 2018. He ruled that Edible Arrangements -- itself an advertiser on Google -- was bound by its agreement with Google to resolve disputes in arbitration.

Edible subsequently sued Google for “theft” and related claims -- but not federal trademark claims -- in state court in Georgia.

In January of 2021, the Georgia Court of Appeals dismissed Edible's lawsuit, ruling that the company's allegations, even if proven true, wouldn't show that Google committed theft.

Court of Appeals Justice Amanda Mercier said in a witten opinion issued that selling and placing ads “does not constitute a taking or appropriation” of Edible's property, or deprive the company of any property.

Edible appealed that ruling to Georgia's highest court, where the company argued that it has a property right in the name Edible Arrangements, and that Google illegally appropriates Edible's goodwill.

“When it auctions off the name Edible Arrangements, and the goodwill associated with that name, that is property that belongs to us,” Edible attorney Jason Carter told the judges at a 40-minute hearing in November.

Google attorney Margaret Caruso countered that Edible lacked a valid claim.

“Edible has no proprietary rights in how third-party ads are placed on Google's search result pages, any more than it has a proprietary right in the placement of ads in the Atlanta Journal Constitution or the billboards on I-285,” Caruso said at the hearing.

In siding with Google, Georgia's Supreme Court said state law only gives limited rights to trademark owners.

“Georgia statutes have long provided only limited protections to owners of trademarks and trade names,” Justice Carla Wong McMillian wrote in Monday's opinion. “Notably, these statutory protections do not preclude a third party from any and all use of an owner’s trademark or trade name.”

McMillian also noted that Edible Arrangements didn't allege that Google caused consumers to be confused.

“Under the common law, a cause of action based on the use of a trademark or trade name has also generally been predicated on either an intent to cause consumer confusion or the likelihood of creating confusion or misunderstanding,” she wrote.

“Other jurisdictions, considering infringement claims in various statutory contexts and under the common law, have reached this same conclusion, i.e., without consumer confusion, mere use of a trademark or trade name does not deprive the owner of the trademark or trade name and its associated goodwill.”

Santa Clara University law professor Eric Goldman suggested last year that Edible Arrangements' claims were a stretch.

“If you’re going to go after a trillion dollar company, at least you should bring your A-game,” he wrote last January, after the Court of Appeals issued a decision in Google's favor. “Instead, Edible Arrangements tried some 'are-you-kidding-me?' claims that most lawyers would be too embarrassed to assert.”