Selling Keyword Ads Isn’t Theft or Conversion–Edible IP v. Google

It’s been years since I’ve blogged a lawsuit against Google for selling trademarked keyword ads. About a decade ago, Google was dealing with about a dozen cases. Google won some of them and settled the rest, and everyone moved on.

Well, almost everyone. Edible Arrangements, which sells overpriced fruit baskets, decided to challenge Google’s cash cow worth billions of dollars of annual revenue. If you’re going to go after a trillion dollar company, at least you should bring your A-game. Instead, Edible Arrangements tried some “are-you-kidding-me?” claims that most lawyers would be too embarrassed to assert. (Shoutout to the plaintiff’s lawyers at Bondurant Mixson & Elmore LLP, including Jason Carter, the former president’s grandson). Guess how well that worked.

Edible Arrangements sued Google in Georgia state court for theft of personal property, conversion, money had and received, and civil RICO. The lower court dismissed. The appeals court affirmed.

Edible Arrangements claimed that Google committed theft of its “property”–its trademarked name–by selling the property in its keyword auctions. This raises an issue as old as Internet Law: when is intangible property legally equivalent to physical space property for purposes of pre-Internet statutes like “theft of property”? Normally laws like “theft” are built upon unstated assumptions about the rivalrous nature of physical chattel, so they should not apply to nonrivalrous intangibles (such as a trademarked name). The court explains:

Google has not taken Edible IP’s trade name or sold it for profit. Rather, Google has auctioned off the opportunity to advertise on the results page produced when an individual types the keyword phrase “Edible Arrangements” into the Google search bar….it does not “deprive” Edible IP of any property…Creative pleading cannot convert Google’s advertising program into a theft by taking

The court adds that theft claims must be interpreted narrowly due to the rule of lenity (i.e., courts shouldn’t expand a civil statute when it would also expand the associated crime).

The rest of the short opinion is similar. For example, regarding the conversion claim, the court says Google didn’t exercise ownership over Edible Arrangement’s IP. “Google simply sold advertising space on search results pages triggered by the phrase ‘Edible Arrangements.'”

The only thing surprising about these conclusions is that SIX plaintiff’s lawyers worked this case thought it was worth litigating in the first place.

It’s also noteworthy that the plaintiff didn’t bring the trademark claim directly. I’m not sure if the trademark issue was litigated elsewhere or if this was a tactical choice. However we got here, the plaintiff tried to stretch some para-trademark claims to cover what trademark law actually covers. It obviously didn’t work, and I find it hard to imagine that the plaintiff’s well-pedigreed lawyers genuinely expected that it would.

Case citation: Edible IP, LLC v. Google, LLC, 2021 WL 302659 (Ga. App. Ct. Jan. 29, 2021)

More Posts About Keyword Advertising

* Competitive Keyword Advertising Still Isn’t Trademark Infringement, Unless…. –Adler v. Reyes & Adler v. McNeil
Three Keyword Advertising Decisions in a Week, and the Trademark Owners Lost Them All
Competitor Gets Pyrrhic Victory in False Advertising Suit Over Search Ads–Harbor Breeze v. Newport Fishing
IP/Internet/Antitrust Professor Amicus Brief in 1-800 Contacts v. FTC
New Jersey Attorney Ethics Opinion Blesses Competitive Keyword Advertising (…or Does It?)
Another Competitive Keyword Advertising Lawsuit Fails–Dr. Greenberg v. Perfect Body Image
The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads
Rounding Up Three Recent Keyword Advertising Cases–Comphy v. Amazon & More
Do Adjacent Organic Search Results Constitute Trademark Infringement? Of Course Not…But…–America CAN! v. CDF
The Ongoing Saga of the Florida Bar’s Angst About Competitive Keyword Advertising
Your Periodic Reminder That Keyword Ad Lawsuits Are Stupid–Passport Health v. Avance
Restricting Competitive Keyword Ads Is Anti-Competitive–FTC v. 1-800 Contacts
Another Failed Trademark Suit Over Competitive Keyword Advertising–JIVE v. Wine Racks America
Negative Keywords Help Defeat Preliminary Injunction–DealDash v. ContextLogic
The Florida Bar and Competitive Keyword Advertising: A Tragicomedy (in 3 Parts)
Another Court Says Competitive Keyword Advertising Doesn’t Cause Confusion
Competitive Keyword Advertising Doesn’t Show Bad Intent–ONEpul v. BagSpot
Brief Roundup of Three Keyword Advertising Lawsuit Developments
Interesting Tidbits From FTC’s Antitrust Win Against 1-800 Contacts’ Keyword Ad Restrictions
1-800 Contacts Charges Higher Prices Than Its Online Competitors, But They Are OK With That–FTC v. 1-800 Contacts
FTC Explains Why It Thinks 1-800 Contacts’ Keyword Ad Settlements Were Anti-Competitive–FTC v. 1-800 Contacts
Amazon Defeats Lawsuit Over Its Keyword Ad Purchases–Lasoff v. Amazon
More Evidence Why Keyword Advertising Litigation Is Waning
Court Dumps Crappy Trademark & Keyword Ad Case–ONEPul v. BagSpot
AdWords Buys Using Geographic Terms Support Personal Jurisdiction–Rilley v. MoneyMutual
FTC Sues 1-800 Contacts For Restricting Competitive Keyword Advertising
Competitive Keyword Advertising Lawsuit Will Go To A Jury–Edible Arrangements v. Provide Commerce
Texas Ethics Opinion Approves Competitive Keyword Ads By Lawyers
Court Beats Down Another Competitive Keyword Advertising Lawsuit–Beast Sports v. BPI
Another Murky Opinion on Lawyers Buying Keyword Ads on Other Lawyers’ Names–In re Naert
Keyword Ad Lawsuit Isn’t Covered By California’s Anti-SLAPP Law
Confusion From Competitive Keyword Advertising? Fuhgeddaboudit
Competitive Keyword Advertising Permitted As Nominative Use–ElitePay Global v. CardPaymentOptions
Google And Yahoo Defeat Last Remaining Lawsuit Over Competitive Keyword Advertising
Mixed Ruling in Competitive Keyword Advertising Case–Goldline v. Regal
Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC
Damages from Competitive Keyword Advertising Are “Vanishingly Small”
More Defendants Win Keyword Advertising Lawsuits
Another Keyword Advertising Lawsuit Fails Badly
Duplicitous Competitive Keyword Advertising Lawsuits–Fareportal v. LBF (& Vice-Versa)
Trademark Owners Just Can’t Win Keyword Advertising Cases–EarthCam v. OxBlue
Want To Know Amazon’s Confidential Settlement Terms For A Keyword Advertising Lawsuit? Merry Christmas!
Florida Allows Competitive Keyword Advertising By Lawyers
Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid
Another Keyword Advertising Lawsuit Fails–Allied Interstate v. Kimmel & Silverman
More Evidence That Competitive Keyword Advertising Benefits Trademark Owners
Suing Over Keyword Advertising Is A Bad Business Decision For Trademark Owners
Florida Proposes to Ban Competitive Keyword Advertising by Lawyers
More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide
Google’s Search Suggestions Don’t Violate Wisconsin Publicity Rights Law
Amazon’s Merchandising of Its Search Results Doesn’t Violate Trademark Law
Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights
With Its Australian Court Victory, Google Moves Closer to Legitimizing Keyword Advertising Globally
Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie
Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit
With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue
Google Defeats Trademark Challenge to Its AdWords Service
Newly Released Consumer Survey Indicates that Legal Concerns About Competitive Keyword Advertising Are Overblown