Hartford Business Journal

6 Hartford Business Journal • February 19, 2018 • www.HartfordBusiness.com By Matt Pilon mpilon@HartfordBusiness.com O n Valentine's Day, perhaps you sent a loved one a fruit bouquet or chocolate-dipped berries made by Edible Arrangements. Such gifts are meant to show affection, but there's no love lost between the Wallingford-based franchisor and its biggest competitors. Earlier this month, Edible filed a federal lawsuit against Google, accusing the internet giant of deceiving consumers who searched for "Edible Arrangements" into clicking on links to competitors' websites like 1-800-Flowers and Shari's Berries, costing the company revenue and diluting its brand. The lawsuit, which demands $209 million in damages and other penalties from the alleged practices, accuses Google of trademark infringement and unfair competition and trade practices. Neither company responded to a request for comment on the lawsuit, which was filed Feb. 5 in New Haven. But two intellectual property experts who reviewed the complaint say it fits into a long line of trademark lawsuits involving internet search advertising, and that defendants have often succeeded in fending them off. Paid search and 'piggybacking' A company can pay Google for a better shot at a more prominent ad placement when certain terms, or "keywords," are queried. Advertisers regularly bid on a variety of keywords they think consumers will search for when looking to buy certain products or services. Companies then agree to pay Google the bid price each time their ad gets clicked. Keyword prices can range widely, based on their popularity, competition and other factors. "It can get up there," said Bill Notartomaso, vice president of digital services at Glastonbury advertising and communications firm Cashman + Katz. "I've seen keywords go up to $10 and change. I've seen them bid for 47 cents." Google says its algorithm decides which ads get the best placement based on a variety of factors including the bid amount and its assessment of an ad's relevance to the search terms. It's big business, according to accounting and consulting firm PwC, which said search advertising made up 47 percent, or nearly $10 billion, of all total internet ad revenue in the second quarter of last year (Edible's suit cites the report). Legal fights have arisen since Google started about 10 years ago allowing advertisers to bid on their competitor's names or brands as a search keyword. The practice is sometimes referred to as "brand-bidding" or "piggybacking." Edible Arrangements sued 1-800-Flowers in 2014 for bidding on phrases that Edible had trademarked. The complaint, which was met with a countersuit, settled in 2016. Indeed, many such trademark lawsuits reach a similar result, but courts have largely held that using trademarked search keywords does not by itself constitute infringement, according to Eric Goldman, a professor at Santa Clara University School of Law in California, who covers the topic on his Technology & Marketing Law Blog and often for Forbes. "Many suits against Google have evaporated," Goldman said. "I thought we might never see another case." In Goldman's view, such lawsuits are "almost always economically irrational for both sides." That might be especially true when the defendant is Google. "Google has more money than Edible Arrangements, and Edible Arrangements is going after one of Google's core businesses, so right Search Wars CT lawsuit seeks to test Google's keyword search advertisement treatment Edible Arrangements says the look and proximity of its competitors' ads in a Google search deceive consumers. Attorneys say Edible will have to convince the court that the display caused consumer confusion. Since this screenshot was taken, Google appears to have changed the look of the ad box several times, though it is unclear why. ILLUSTRATION | C!; TRIBALIUMVS, VECTORSTOCK.COM

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