Left Field Holdings v. Google LLC

Background

Left Field Holdings and the other plaintiffs sued Google LLC over Google’s handling of online orders from their restaurants. They asserted claims for trademark infringement, counterfeiting, false association, and false advertising. The court evaluated the amended complaint under the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) for claims sounding in fraud.

Court’s Analysis

The plaintiffs argued that Google’s “Order Online” and “Order Delivery” buttons were misleading because they appeared near a restaurant’s name and near links that could directly connect users to the restaurant. The court rejected that theory in context. The page also contained a save option, a star rating, and a link to Google reviews, which were not provided by the restaurant. The court concluded that the contested buttons did not create false association or false advertising.

The court also held that Google’s use of the restaurants’ names was nominative fair use—a use of another party’s mark to identify that party when there is no practical alternative. Google used only the restaurants’ plain names, not stylized logos, and the pages did not improperly suggest sponsorship or endorsement. The court further concluded that the pages did not amount to counterfeiting.

The plaintiffs also alleged that orders placed through Google were sent to a delivery provider without the restaurant’s knowledge. The court found that the delivery provider’s involvement was not hidden from users. The screenshots identified “Delivery Dudes,” described its delivery fee and delivery timing, and the complaint alleged that users could choose among available delivery providers. The court concluded that these facts were inconsistent with false association and false advertising. It also found nominative fair use and rejected the counterfeiting theory because customers received food from the restaurant, not Google.

The plaintiffs challenged another page that listed pickup and delivery options. The court found it difficult to see how that page supported their claims, and emphasized that the plaintiffs had omitted the page’s footer, which prominently displayed a Google logo. Because the omitted logo undercut the theory that the page was misleading, the court raised serious concerns under Federal Rule of Civil Procedure 11 about the lawyers who signed the amended complaint. The court considered the complete page because it was incorporated by reference in the complaint, but stated that it did not consider Google’s other judicial-notice exhibits in deciding the motion.

Disposition

The court granted Google’s motion to dismiss and dismissed the complaint with leave to amend. Any amended complaint was due within 21 days of the order. The court also set an initial case-management conference for February 15, 2023, and required a case-management statement by February 8, 2023. This is classified as a procedural order because the case was dismissed at the pleading stage under Rule 12 rather than resolved through a final merits determination after the claims were tested in litigation.