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