A case in the Northern District of California was notable for the way it ended, as opposed to its otherwise straightforwardness. Leftfield Holdings v. Google was a class action started on behalf of several restaurateurs of Mexican food who accused Google of trademark infringement, counterfeiting, false association, and false advertising. This was a motion to dismiss.
Google provides search services for restaurants, and the plaintiffs are alleging those services violate the restaurants’ trademark rights, as well as asserting counterfeiting, false association, and false advertising. This, according to the plaintiffs, is because an “Order” button on the web page leads to a separate landing page with different delivery options. The class action claimed the button’s proximity to the restaurants’ logos infringed on trademark rights in the restaurants’ names and logos.
The judge started by saying the button clearly shows, and the plaintiff’s own exhibit clearly shows, that the delivery service is not Google, but an independent company called Delivery Dudes — which delivers take out orders for a $3 fee, without any minimum order amount.
In response to the allegations that Google counterfeited, falsely associated, and/or falsely advertised, the Court held that merely listing the names of the restaurants was a “textbook” case of nominative fair use. In general, using the restaurant’s name for this delivery service, without including their logo or anything more than necessary to show the restaurant itself, is the only way to describe the source of that menu. The court found no trademark infringement or any other related claim.
Plaintiffs claimed that the third-party nature of the ordering process is hidden from them, but the court pointed out that it is not hidden from the customer: just look at the website, and it’s clear that the order is going through Delivery Dudes rather than the restaurant. Additionally, the fact that Google provided access to the restaurants through multiple delivery providers was inconsistent with the claim that Google used each restaurant’s trademark for improper purposes.
Finally, the court turned its attention to an issue of integrity. The plaintiffs had one more thing go wrong when the court called them out for cropping a visual piece of evidence. In their screenshot of the landing page, the plaintiffs omitted the footer of this screenshot, which featured a prominent Google® logo. The inclusion of the entire image would have undermined the plaintiffs’ claim that the landing page is misleading.
The judge took the time to list the names of the 12 attorneys who signed this complaint and had attached a misleading screenshot — that had been cropped in a way that excluded important information. The judge suggested they were flirting with being sanctioned for engaging on fraud in the court and other frivolous conduct.
So, the lesson here is don’t cut corners and don’t make the evidence look better than it is, because that’s the stuff that gets judges angry. It also, of course, is unfair and misleading.
