Love is in the air, and joining its side is a trademark infringement lawsuit. Early February, Edible Arrangements took a break from its busy schedule to file a lawsuit against Google for $209 million in damages.
The lawsuit claims that because Google allows other companies to use its trademarked phrase ‘Edible Arrangements’ as a keyword term through Google’s advertising program, Edible Arrangements is losing millions. Specifically, when someone goes to search the brand on Google, the customer is provided with information on the company alongside links to competitors. The company even has records of customers who have accidentally purchased items from its competitors instead of the name brand because of Google’s practices.
Search engine optimization is an important part of advertising, and is basically when a company pays money to have their business show up when people search certain words. For example, a hair salon will pay to have their business come up when people search for words like ‘haircut’ or ‘salon’. The problem here is that ‘edible arrangements’ is being used by other companies to describe what the person is searching, rather than the company the person is actually searching for.
A trademark can lose its protection when it is being used as the answer to the question ‘what are you,’ rather than ‘who are you.’ As a source identifier, a trademark should only answer ‘who are you.’ When a mark starts answering the ‘what are you’ question, it is time to start planning a funeral for the mark, because it is now a generic term worthy of no protection.
Fortunately for Edible Arrangements, it is doing its part to fight the genericide of the mark.
Nothing goes better with a delivery from Edible Arrangements like a lawsuit.
Information accredited to Law360.