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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`LEFT FIELD HOLDINGS, et al.,
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`Plaintiffs,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`Case No. 22-cv-01462-VC
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`ORDER GRANTING MOTION TO
`DISMISS
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`Re: Dkt. No. 44
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`The plaintiffs in this case don’t like how Google facilitates online orders from their
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`restaurants. They try to articulate claims for trademark infringement, counterfeiting, false
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`association, and false advertising. They don’t succeed, especially considering Rule 9(b)’s
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`heightened pleading requirements for claims sounding in fraud.1
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`One of the plaintiffs’ theories is that the “Order Online” or “Order Delivery” button is
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`misleading by itself because it is near the restaurant’s name and is surrounded by links that
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`would otherwise “directly connect the consumer to the restaurant.” Dkt. No. 41 at 14–15. It is
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`true that the “Website” and “Call” links would do so. Whether a “Directions” link connects
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`someone directly to a destination is debatable. But in any case, an equally prominent button
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`allows the user to save the restaurant within their Google account to find later. There is also a
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`star rating and a blue link to “Google reviews,” which are obviously not provided by the
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`restaurant. In context, the contested button is not false association or false advertising. And the
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`use of the restaurant’s name here is a textbook example of nominative fair use: There is no other
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`1 This order assumes the reader is familiar with the case.
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`Case 3:22-cv-01462-VC Document 64 Filed 11/18/22 Page 2 of 3
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`way to identify the restaurant; Google uses only the plain name, not a stylized logo; and there is
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`no improper suggestion of sponsorship or endorsement. New Kids on the Block v. News America
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`Publishing, Inc., 971 F.2d 302, 308 (9th Cir. 1992). Finally, in no way does this page
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`conceivably amount to counterfeiting.
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`When a user clicks the “Order Online” or “Order Delivery” button, they will sometimes
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`be taken to a page where they can place a delivery order for food from the restaurant. Dkt.
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`No. 41 at 16. The plaintiffs claim that orders from this page are sent to a delivery provider
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`“unbeknownst to the restaurant.” Id. at 18. But the involvement of a delivery provider is not
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`hidden from the user. The plaintiffs’ screenshots show that the order will be processed by
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`“Delivery Dudes,” a delivery provider that apparently charges a $2.99 delivery fee but requires
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`no minimum order and promises delivery within 45 minutes. Id. at 16–18, figs. 5, 6, 8. The
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`complaint further alleges that if there are multiple delivery providers available, the user selects
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`which to use. Id. at 17. Those facts are not consistent with false association or false advertising.
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`The use of the restaurant’s mark here is also nominative fair use, since it does not improperly
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`imply an association with the restaurant. This use is also not counterfeiting: A customer who
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`places an order gets food from the restaurant, not Google.
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`If a user isn’t taken to a “storefront” page to place an order, they will instead see what the
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`plaintiffs call a “landing” page. The landing page shows a list of options to place an order for
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`pickup or delivery. Id. at 24, fig. 10. It is difficult to imagine how a page like this could support
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`any of the plaintiffs’ claims. But the biggest problem is that the plaintiffs omitted the page’s
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`footer, which features a prominent Google logo—undercutting the theory that the page is
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`misleading.2 Perhaps this was inadvertent. But in a complaint alleging misleading design
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`choices, cropping out such an important part of the page raises serious Rule 11 concerns about
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`the twelve lawyers who signed the amended complaint. Those lawyers include Hausfeld partners
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`2 The full page was provided by Google, Dkt. No. 45-6, and may be considered in resolving this
`motion because it is incorporated by reference in the complaint. See Knievel v. ESPN, 393 F.3d
`1068, 1076 (9th Cir. 2005). The Court did not consider the other exhibits to Google’s request for
`judicial notice in deciding this motion.
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`2
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`Case 3:22-cv-01462-VC Document 64 Filed 11/18/22 Page 3 of 3
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`Michael Lehmann and Bonny Sweeney; Sperling & Slater partners Eamon Kelly, Trevor
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`Scheetz, Bruce Sperling, and Joseph Vanek; and Keller Lenkner (now Keller Postman) partners
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`Seth Meyer and Jason Zweig.
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`The complaint is dismissed with leave to amend. Any amended complaint is due within
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`21 days of this order. The initial case management conference is set for February 15, 2023. A
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`case management statement is due February 8, 2023.
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`IT IS SO ORDERED.
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`Dated: November 18, 2022
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`______________________________________
`VINCE CHHABRIA
`United States District Judge
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`3
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