Edible Ip, LLC v. Google, LLC

In the Supreme Court of Georgia

Decided: February 15, 2022

S21G0798. EDIBLE IP, LLC v. GOOGLE, LLC.

MCMILLIAN, Justice.

This case involves Google LLC’s application of internet search

algorithms, which it uses to auction off search terms for profit to

advertisers, and the interests of Edible IP, LLC, which seeks to

exercise control over the profit generated from its trade name and

associated goodwill. In 2018, Edible IP brought an action against

Google arising from Google’s monetization of the name “Edible

Arrangements” without permission in its keyword advertising

program. Google moved to dismiss the complaint, or in the

alternative, to compel arbitration. The trial court granted the

motion, dismissing the complaint on several grounds, including that

it failed to state a claim, and alternatively compelling the parties to

arbitration. Edible IP appealed from that order, and the Court of

Appeals affirmed the dismissal for failure to state a claim. See

Edible IP, LLC v. Google, LLC, 358 Ga. App. 218 (854 SE2d 565)

(2021). We granted certiorari to address whether the trial court

properly granted Google’s motion to dismiss. 1 For the reasons that

follow, we conclude that Edible IP has not stated a cognizable claim

for relief and therefore affirm.

The Court of Appeals summarized the relevant facts

underlying this appeal as follows:

[T]he complaint alleges that Edible IP owns the

trademarks, trade names, and other intellectual property

associated with Edible Arrangements, a business

consisting of websites and “brick-and-mortar” franchises

that sell, among other things, floral-shaped arrangements

of fresh-cut fruit. To support these websites and

franchises, Edible IP licenses the use of its intellectual

property to various entities. Edible IP, however,

maintains ownership of the intellectual property, which

includes the trademark/trade name “Edible

Arrangements,” as well as the goodwill generated by the

brand.

Google operates an internet search engine that

allows individuals to search for information by typing

relevant words into a search bar. Using algorithms that

analyze the search terms and requested information,

1 We are aided in this endeavor by amicus curiae briefs filed by the

International Franchise Association and the Internet Association.

2

Google returns “organic” results of the query on a results

page. According to the complaint, Google monetizes its

search engine by “sell[ing] . . . ‘keywords’” to advertisers

that “trigger advertisements on the search results page

when Google users search for the keyword term.”

Keyword advertising is purchased through an

auction-like process, with prospective advertisers bidding

on terms suggested by Google. The auction includes

general terms like “shoes” and “mother’s day gift,” as well

as trade names such as “Edible Arrangements.” Google

has never contracted with Edible IP for the right to use

the Edible Arrangements trade name, and Edible IP has

not otherwise given Google permission to include its trade

name in the keyword advertising program. Nevertheless,

Google began auctioning the trade name to advertisers in

approximately 2011. As described by the complaint,

Google places advertisements purchased through the

keyword program “in a more attractive location on the

results page than its ‘organic’ results in an effort to drive

consumer behavior and get those consumers to click on

the ad rather than Google’s ‘organic’ results.”

Based on these and other allegations, Edible IP sued

Google for theft of personal property, conversion, money

had and received, and civil [Racketeer Influenced and

Corrupt Organizations (“RICO”)] violations. Google

moved to dismiss the complaint, arguing that any claims

alleged by Edible IP needed to be arbitrated, that a forum

selection clause deprived the trial court of personal

jurisdiction over Google, and that the complaint failed to

state a claim upon which relief could be granted. Google

also requested that the trial court compel the parties to

arbitration.

3

The trial court granted the arbitration request,

determining that Edible IP was subject to an arbitration

provision agreed to by one of Edible IP’s affiliates, which

had accepted the terms and conditions of Google’s

advertising program. The trial court also found that a

forum selection clause within those terms and conditions

required that the litigation be filed in California.

Alternatively, the court concluded that the complaint

failed to state a claim.

Edible IP, 358 Ga. App. at 219-20.

On appeal, the Court of Appeals assumed, without deciding,

that the trial court correctly determined that Edible IP was bound

by the arbitration and forum selection clauses in Google’s contracts

with companies affiliated with Edible IP and held that Edible IP’s

complaint failed to state a claim upon which relief may be granted.

See Edible IP, 358 Ga. App. at 220. We granted Google’s petition for

certiorari to review that holding.

1. A trial court is not authorized to grant a motion to dismiss

for failure to state a claim upon which relief may be granted unless:

(1) the allegations of the complaint disclose with certainty

that the claimant would not be entitled to relief under any

state of provable facts asserted in support thereof; and (2)

the movant establishes that the claimant could not

possibly introduce evidence within the framework of the

4

complaint sufficient to warrant a grant of the relief

sought.

Global Payments, Inc. v. InComm Financial Svcs., Inc., 308 Ga. 842,

842-43 (843 SE2d 821) (2020) (citation and punctuation omitted).

And in deciding such motions, “all pleadings are to be construed

most favorably to the party who filed them, and all doubts regarding

such pleadings must be resolved in the filing party’s favor.” Id. at

843 (citation and punctuation omitted). This Court reviews the

grant of a motion to dismiss de novo. See Norman v. Xytex Corp., 310

Ga. 127, 130 (2) (848 SE2d 835) (2020).

Edible IP insists that this case does not involve trademark

infringement claims, 2 asserting instead that it is challenging

Google’s direct sale of its proprietary name and goodwill to

competitors via Google’s keyword advertising program and that the

trial court ignored longstanding property law that guarantees a

remedy for violations of property rights. Based on this theory, Edible

2 In its complaint against Google, Edible IP specifically disavowed any

such claims: “Edible IP does not assert any federal trademark infringement or

federal dilution claims, nor seek any other relief for any consumer confusion.”

5

IP has alleged four claims: (1) civil theft of personal property; (2)

conversion; (3) money had and received; and (4) violations of

Georgia’s RICO Act. We will address each of the claims in turn.

a. Civil Theft of Personal Property

Georgia law authorizes the owner of property to bring a civil

action to recover damages from any person who either (1) willfully

damages the owner’s personal property or (2) commits a theft as

defined in OCGA § 16-8-2. See OCGA § 51-10-6 (a). OCGA § 16-8-2,

in turn, provides that

[a] person commits the offense of theft by taking when he

unlawfully takes or, being in lawful possession thereof,

unlawfully appropriates any property of another with the

intention of depriving him of the property, regardless of

the manner in which the property is taken or

appropriated.

In its complaint, Edible IP relied on the second method, alleging that

“Google has committed theft by taking, in violation of OCGA § 16-8-

2” by “unlawfully tak[ing] and otherwise appropriat[ing] Edible IP’s

property by selling that property without permission to others and

keeping the proceeds for itself.” Edible IP identified the property as

6

its “trade name ‘Edible Arrangements’ and the good will and

reputation associated with that name.”

Noting the statutory definition of “deprive,”3 the trial court

concluded that because Edible IP has been able to make use of its

trade name over the past decade, Edible IP was unable to plead facts

establishing that Google “withheld” or “disposed” of its trade name.

The Court of Appeals ultimately agreed, explaining that, rather

than taking Edible IP’s trade name or selling it for profit, Google’s

conduct involves the sale and placement of advertisements, which

does not constitute a taking or appropriation of Edible IP’s property.

See Edible IP, 358 Ga. App. at 221 (1).

Edible IP now argues that, in affirming the trial court’s grant

of Google’s motion to dismiss, the Court of Appeals looked beyond

the plain language of Georgia’s theft statute to improperly limit its

In this context, “[d]eprive” means, without justification:

3

(A) To withhold property of another permanently or temporarily;

or

(B) To dispose of the property so as to make it unlikely that the

owner will recover it.

OCGA § 16-8-1 (1).

7

scope. On the other hand, Google asserts that OCGA § 51-10-6 was

introduced in the legislature as the “Civil Shoplifting Act” to give

merchants a civil remedy against shoplifters and does not cover the

use of trademarks. 4 We are, thus, first required to determine

whether Edible IP’s trade name and associated goodwill are

“property” within the meaning of the civil theft statute and, if so, the

contours of the associated property rights and whether Edible IP has

sufficiently alleged that Google has wrongfully “appropriated” this

property.

(i) Turning to the first question, we begin by defining several

key terms. OCGA § 16-1-3 (13) broadly defines “property” as

anything of value, including but not limited to real estate,

tangible and intangible personal property, contract rights,

services, choses in action, and other interests in or claims

to wealth, admission or transportation tickets, captured

or domestic animals, food and drink, and electric or other

power.

4See Ga. L. 1988, p. 404, § 1; D. Johnson, Injuries to Personality; Provide

Remedy for Owners of Intentionally Damaged or Stolen Property, 5 Ga. St. U.

L. Rev. 503 (1988).

8

Id. (emphasis added). A “trade name”5 is “a word, name, symbol,

device, or any combination of the foregoing in any form or

arrangement used by a person to identify his business, vocation, or

occupation and distinguish it from . . . others.” OCGA § 10-1-371 (8).

“Goodwill” has been defined as “essentially the positive reputation

that a particular business enjoys. This ‘positive reputation’

manifests itself as an expectancy that a business has of continued

patronage from its customer.” 38 Am. Jur. 2d Good Will § 1. See also

Armstrong v. Atlantic Ice & Coal Corp., 141 Ga. 464, 466 (81 SE 212)

(1914) (“Good will is the favor which the management of a business

wins from the public, and the probability that old customers will

continue their patronage and resort to the old place.” (citation

omitted)); Goodwill, Black’s Law Dictionary (11th ed. 2019) (defining

goodwill as “[a] business’s reputation, patronage, and other

intangible assets that are considered when appraising the

business”).

5 A “trademark” is separately defined as “a mark used by a person to

identify goods and to distinguish them from the goods of others.” OCGA § 10-

1-371 (7).

9

We have expressly recognized that goodwill is a type of

intangible property interest. See Nat. Assn. for Advancement of

Colored People v. Overstreet, 221 Ga. 16, 29 (4) (a) (142 SE2d 816)

(1965) (“It is uniformly recognized that good will is a species of

property and constitutes a valuable asset of the business of which it

is a part.” (citation omitted)). See also Reis v. Ralls, 250 Ga. 721, 723

(1) (301 SE2d 40) (1983) (“[I]t appears clear that in addition to a

trademark, a trade name, along with the goodwill it represents, may

be the subject of an Article 9 security interest.”).

Here, Edible IP specifically pleaded that it is the only entity

entitled to license the use of the trade name “Edible Arrangements”;

that it licenses the use of that name to its various franchisees and

affiliates, including both brick-and-mortar franchises and internet-

based retailers locally, nationally, and globally; and that its

franchisees rely heavily on consumers seeking out their locations by

name. Construing these factual allegations in favor of Edible IP for

the purpose of analyzing Google’s motion to dismiss, as we must,

Edible IP has sufficiently alleged a property interest in the trade

10

name “Edible Arrangements” and its associated goodwill within the

meaning of OCGA § 51-10-6.

(ii) We turn now to the question of whether Google’s actions

constitute theft of that property interest as alleged by Edible IP, and

to answer that question, we must first consider what rights the

owner of a trade name and the associated goodwill has to exclude

others from using its trade name. “Georgia protects trade names by

statute and by common law.” Diedrich v. Miller & Meier & Assocs.,

254 Ga. 734, 736 (2) (334 SE2d 308) (1985). See also Giant Mart

Corp. v. Giant Discount Foods, Inc., 247 Ga. 775 (279 SE2d 683)

(1981). Thus, in order to determine the contours of Edible IP’s

property right in its trade name, we must examine both Georgia

statutory law and the common law.

Georgia statutes have long provided only limited protections to

owners of trademarks and trade names. Notably, these statutory

protections do not preclude a third party from any and all use of an

owner’s trademark or trade name. For example, in 1968, the General

Assembly enacted the Uniform Deceptive Trade Practices Act,

11

OCGA § 10-1-370 et seq., as a source of relief for, among other

things, the victim of trademark or trade name infringement. See Ga.

L. 1968, p. 337, § 2. Relevant to our inquiry here, OCGA § 10-1-372

(a) defines a deceptive trade practice as one that:

(1) Passes off goods or services as those of another;

(2) Causes likelihood of confusion or of misunderstanding

as to the source, sponsorship, approval, or certification of

goods or services;

(3) Causes likelihood of confusion or of misunderstanding

as to affiliation, connection, or association with or

certification by another;

...

(12) Engages in any other conduct which similarly creates

a likelihood of confusion or of misunderstanding.

Other statutes protect against the deceptive use of another’s

trademark or trade name. OCGA § 23-2-55 provides that “[a]ny

attempt to encroach upon the business of a trader or other person by

the use of similar trademarks, names, or devices, with the intention

of deceiving and misleading the public, is a fraud for which equity

will grant relief.” (Emphasis added.) See also Giant Mart Corp., 247

Ga. at 776 (holding that relief under OCGA § 23-2-55 “depends upon

a showing of intent to deceive[,]” which “may be presumed if

12

encroachment is done with knowledge of prior right”). Similarly,

OCGA § 10-1-453 provides:

Any firm, person, corporation, or association who shall

use the name or seal of any other person, firm,

corporation, or association, in and about the sale of goods

or otherwise, not being authorized to use the same,

knowing that such use is unauthorized with intent to

deceive the public in the sale of goods, shall be guilty of a

misdemeanor.

(Emphasis added.) 6 Under each of these statutes, it is clear that

trade names are only protected from use by others to the extent that

such use is deceptive or there is a likelihood of confusion by the

public. 7

6 We note that a claim for trademark dilution under OCGA § 10-1-451

(b) requires a “blurring” or “tarnishment” of the trademark to bring an

actionable claim. McHugh Fuller Law Group, PLLC v. PruittHealth, Inc., 300

Ga. 140, 144-46 (2) (794 SE2d 150) (2016). Edible IP does not allege that Google

has diluted the Edible Arrangements trade name by using it in Google’s

keyword advertising program.

7 We note that the General Assembly enacted OCGA § 16-9-93.1 in 1996,

which, in pertinent part, makes it a crime for

any person . . . knowingly to transmit any data through a computer

network . . . if such data uses any . . . trade name, registered

trademark, logo, legal or official seal, or copyrighted symbol . . .

which would falsely state or imply that such person . . . has

permission or is legally authorized to use [it] for such purpose

when such permission or authorization has not been obtained.

OCGA § 16-9-93.1 (a). See Ga. L. 1996, p. 1505, § 1. Shortly after its enactment,

however, a federal court deemed the statute unconstitutional. See American

13

Here, Edible IP has not alleged that Google’s use of the “Edible

Arrangements” trade name in its keyword advertising program

causes any confusion, and in fact, has disclaimed in the complaint

that it is “seek[ing] any . . . relief for any consumer confusion.” Thus,

we see no basis in Georgia statutory law for Edible IP’s claim that

Google has appropriated the “Edible Arrangements” trade name

simply by using it in Google’s algorithms and keyword advertising

programs.

The common law likewise does not provide a basis for Edible

IP’s civil theft claim. Under the common law, a cause of action based

on the use of a trademark or trade name has also generally been

Civil Liberties Union of Ga. v. Miller, 977 FSupp. 1228, 1233-35 (1) (N.D. Ga.

1997) (concluding that, because the statute criminalizes the use of trademarks

and trade names regardless of the speaker’s intent to deceive or whether

deception actually occurs, the statute’s language is not narrowly tailored to

promote a compelling state interest; is overbroad and sweeps protected activity

within its proscription; and is void for vagueness). Relying on Miller, Google

argues that Edible IP’s proposed construction of OCGA §§ 51-10-6 and 16-8-2

would render the civil theft statute unconstitutional in the same way as OCGA

§ 16-9-93.1 and that, under the canon of constitutional doubt, the civil theft

statute should be read to not criminalize the use of non-deceptive and non-

confusing trade names in keyword searches. We need not reach that question,

however, because we conclude below that Edible IP has failed to state a claim

for civil theft of its trade name on other grounds.

14

predicated on either an intent to cause consumer confusion or the

likelihood of creating confusion or misunderstanding. See, e.g.,

McLean v. Fleming, 96 U.S. 245, 251 (24 LEd 828) (1877) (“[N]o

trader can adopt a trade-mark, so resembling that of another trader,

as that ordinary purchasers, buying with ordinary caution, are

likely to be misled.”); McHugh Fuller Law Group, PLLC v.

PruittHealth, Inc., 300 Ga. 140, 144 (2) (794 SE2d 150) (2016); Reis,

250 Ga. at 724 (2) (concluding that equity will enjoin use of another’s

trade name where “the buyers are knowingly using a confusingly

similar name”); Pearl Optical, Inc. v. Pearle Optical of Ga., Inc., 218

Ga. 701, 705 (3) (130 SE2d 223) (1963) (if the general public might

be deceived and misled into confusing the two businesses, the result

could dilute plaintiff’s goodwill to the unjust enrichment of

defendant); Gano v. Gano, 203 Ga. 637, 639 (47 SE2d 741) (1948)

(liability existed where defendant copied trade name “for the

purpose of deceiving the public into thinking that the businesses of

the plaintiffs and the defendants were the same”); Kay Jewelry Co.

v. Kapiloff, 204 Ga. 209, 213 (49 SE2d 19) (1948) (“The ultimate

15

wrong under all these theories of relief is that there will be a

confusion on the part of the public.”). As this Court has explained,

“[r]elief against unfair competition by the use of trade-names really

rests on the deceit or fraud which the later comer into the field is

practicing upon the earlier comer and on the public.” Atlanta Paper

Co. v. Jacksonville Paper Co., 184 Ga. 205, 212 (2) (190 SE 777)

(1937). And,

[u]nless it appears that there is or will probably be a

deception of ordinary buyers and the general public into

thinking that the goods or business of one is the business

or goods of another, and thus bring about the sale of one

man’s goods as the goods of the other, the case is [damage

without injury], for which no action lies.

Id. at 213 (2).

Other jurisdictions, considering infringement claims in various

statutory contexts and under the common law, have reached this

same conclusion, i.e., without consumer confusion, mere use of a

trademark or trade name does not deprive the owner of the

trademark or trade name and its associated goodwill. See, e.g.,

Limitless Worldwide, LLC v. AdvoCare Intl., LP, 926 FSupp.2d

16

1248, 1254 (D. Utah 2013) (declining to issue injunctive relief to

protect defendant’s goodwill where there was no likelihood of

confusion from the plaintiff’s use of the word “Spark”); Minnesota

Pet-Breeders v. Schell & Kampeter, 843 FSupp. 506, 518 (D. Minn.

1993) (“The touchstone of proof of loss of goodwill damages is

consumer confusion – if consumers are not confused[,] . . . the

complaining party cannot be said to have suffered compensable loss

of any goodwill . . . .” (emphasis in original)); Union Carbide Corp. v.

Fred Meyer, Inc., 619 FSupp. 1028, 1035 (D. Ore. 1985) (“No loss of

reputation, trade, or good will . . . takes place in the absence of

consumer confusion.”). Cf T-Mobile US, Inc. v. Aio Wireless LLC, 991

FSupp.2d 888, 929 (S.D. Tex. 2014) (monetary damages not

sufficient to remedy the loss of future goodwill where plaintiff

established likelihood of consumer confusion).

And although Edible IP disclaims asserting any federal

trademark claim, a review of federal trademark law is instructive

on the contours of a third party’s right to use a trade name. Like

Georgia statutory law and the common law, federal trademark law

17

offers only limited trademark and trade name protection.8 For

example, the doctrine of fair use permits reference to a competitor’s

trade name in an advertisement. See Saxlehner v. Wagner, 216 U.S.

375, 380-81 (30 SCt 298, 54 LEd 525) (1910) (seller can use

competitor’s name in advertising to explain its product was

imitation of competitor’s); Toyota Motor Sales, U.S.A., Inc. v. Tabari,

610 F3d 1171, 1180 (A) (9th Cir. 2010) (“[T]he wholesale prohibition

of nominative use in [trade names] . . . would be unfair to merchants

seeking to communicate the nature of the service or product offered

. . . [and] to consumers, who would be deprived of an increasingly

important means of receiving such information.”); Intl. Stamp Art,

Inc. v. United States Postal Service, 456 F3d 1270, 1277 (11th Cir.

2006) (no trademark infringement where defendant’s use of the

mark did “not attempt to capitalize on consumer confusion” and did

not “implicate the source-identification function that is the purpose

8 See 15 USC § 1115 (b) (1-9) (listing defenses available to an

infringement claim, including subpart (b) (4): “[t]hat the use of the name . . . is

descriptive of and used fairly and in good faith only to describe the goods or

services of such party, or their geographic origin”).

18

of trademark” (citation omitted)). See also Smith v. Chanel, Inc., 402

F2d 562, 567-68 (9th Cir. 1968) (allowing perfume maker to

advertise that its scent smells like Chanel No. 5); Delta Air Lines,

Inc. v. Wunder, Case No. 1:13-CV-3388, 2015 U.S. Dist. LEXIS

199749, at *32-33 (N.D. Ga. Dec. 15, 2015) (“[O]ne can use another’s

mark truthfully to identify another’s goods or services in order to

describe or compare its product . . . . This right to use a mark to

identify the marketholder’s products—a nominative use—however,

is limited in that the use cannot be one that creates a likelihood of

confusion . . . .” (citation omitted)); McHugh Fuller Law Group, 300

Ga. at 148 (2) (“[T]rademark law does not impose a blanket

prohibition on referencing a trademarked name in

advertising. Indeed, it is often virtually impossible to refer to a

particular product for purposes of comparison, criticism, point of

reference, or any other such purpose without using the mark.”

(citation and punctuation omitted)).

In summary, trademark law recognizes a distinction between

the illegitimate misappropriation of a business’s goodwill and

19

legitimate comparative advertising and, therefore, permits the use

of trade names as long as referencing other brand names does not

confuse consumers and is not deceptive. 9 Indeed, if liability for using

a trademark or trade name could be imposed without the “likelihood

of confusion” test, as Edible IP urges, then “over 100 years of

trademark law would be discarded.” J. Thomas McCarthy,

Conversion of a Trademark, 4 McCarthy on Trademarks and Unfair

Competition, § 25:9.50 (5th ed. 2019) (hereafter “McCarthy”)

(explaining why “the tort of ‘conversion’ should not be used in

ordinary trademark infringement cases as a shortcut around the

trademark law’s standards of protection”). We see no reason to

9 A federal trademark infringement claim is also predicated on the

likelihood of consumer confusion. The Eleventh Circuit, for example, employs

a seven-factor test to analyze the likelihood of confusion:

(1) strength of the mark alleged to have been infringed; (2)

similarity of the infringed and infringing marks; (3) similarity

between the goods and services offered under the two marks; (4)

similarity of the actual sales methods used by the holders of the

marks, such as their sales outlets and customer base; (5) similarity

of advertising methods; (6) intent of the alleged infringer to

misappropriate the proprietor’s goodwill; and (7) the existence of

actual confusion in the consuming public.

Delta Air Lines, Inc. v. Wunder, Case No. 1:13-CV-3388, 2015 U.S. Dist. LEXIS

199749, *25-26 (N.D. Ga. Dec. 15, 2015) (citation and punctuation omitted).

20

extend civil theft in Georgia to encompass the mere use of a trade

name, without implicating consumer confusion, when doing so

would subvert Georgia trademark law, federal trademark law, and

the common law of trademark infringement.

Edible IP claims that it has the absolute right to control the

use of its trade name and associated goodwill, but the cases Edible

IP points to for this proposition are inapplicable here. For example,

in Department of Transportation v. Arnold, 243 Ga. App. 15 (530

SE2d 767) (2000), the Court of Appeals held that the government

was required to pay a landowner for the goodwill associated with his

property taken by eminent domain. See id. at 17 (1). This case does

not aid Edible IP, as there is no allegation here of a physical taking

associated with its goodwill claim. Edible IP also points to Martin

Luther King, Jr., Center for Social Change, Inc. v. American Heritage

Products, Inc., 250 Ga. 135 (296 SE2d 697) (1982), in which this

Court held that Martin Luther King, Jr.’s heirs are entitled to

protect his “name and likeness” from those who would appropriate

it “without consent and for financial gain.” Id. at 141-42 (1)

21

(recognizing common law right to prevent exploitation of person’s

image for profit as “one of preventing unjust enrichment by the theft

of good will” (citation omitted)). But, the intangible property at issue

in that case was a natural person’s right to publicize his name and

likeness, which is also a kind of invasion of privacy claim, and is a

right that is distinct from those trade name rights extended to a

corporation such as Edible IP. See id. at 138-42 (analyzing right to

publicity as deriving from a natural person’s right to privacy); cf.

United States v. Morton Salt Co., 338 U.S. 632, 652 (IV) (70 SCt 357,

94 LEd 401) (1950) (“[C]orporations can claim no equality with

individuals in the enjoyment of a right to privacy.”); Bd. of Regents

of the Univ. System of Ga. v. Atlanta Journal & Atlanta Constitution,

259 Ga. 214, 217 (4) (a) (378 SE2d 305) (1989) (distinguishing

between a personal right to privacy and a corporate preference for

privacy).

Edible IP also argues, citing Williams v. National Auto Sales,

Inc., 287 Ga. App. 283 (651 SE2d 194) (2007), that “an unauthorized

22

sale of the property is itself an unlawful exercise of dominion.” 10 Id.

at 286 (1). Although this principle is generally true, this argument

inaccurately presupposes that Google has actually sold any of Edible

IP’s property versus using the “Edible Arrangements” trade name in

selling Google’s own advertising. 11

An-Hung Yao v. State, 975 NE2d 1273 (Ind. 2012), is likewise

distinguishable. In An-Hung Yao, the defendants were charged with

theft, among other things, for selling “airsoft guns” that were

replicas of real weapons made by a firearms manufacturer; the theft

10 In Williams, a car owner sued a dealership and its employee for

conversion and a variety of other claims after the dealership repossessed the

owner’s car and sold it to a third party. See 287 Ga. App. at 283.

11 Edible IP also points to several cases that it alleges found a deprivation

of property absent any physical taking. See, e.g., Levenson v. Word, 294 Ga.

App. 104, 107-08 (668 SE2d 763) (2008) (addressing assets of a decedent’s

estate); Taylor v. Powertel, Inc., 250 Ga. App. 356, 358-59 (551 SE2d 765)

(2001) (charges on a phone bill); Jones v. Turner Broadcasting System, 193 Ga.

App. 768, 769 (389 SE2d 9) (1989) (business plan for a television show); Brown

v. State, 177 Ga. App. 284, 290-91 (339 SE2d 332) (1985) (theft of services);

State v. Cecil, Case No. 35979-1-II, 2008 Wash. App. LEXIS 1400, at *19

(Wash. Ct. App. June 17, 2008) (affirming theft conviction where defendant

copied credit card number, social security number, and PIN); State v. Nelson,

842 A2d 83, 86 (N.H. 2004) (scanned copies of photographs amounted to theft).

Again, however, these cases are readily distinguishable, as they either do not

involve the alleged theft of trade names or clearly involve consumer confusion,

a claim Edible IP has expressly abandoned.

23

was alleged to be of the “trademarks and/or markings or symbols of

identification.” Id. at 1280. The defendants argued that it was “not

theoretically possible” to exert unauthorized control over a third

party’s trademark and that any such unauthorized use could only be

remedied by a civil trademark infringement action. Id. at 1281-82.

After examining the applicable theft statute, the Indiana Supreme

Court held that copying the distinct look of the weapon and using

the trademark could, on a motion to dismiss the charges, be

considered exerting unauthorized control over the trademark or at

least “encumber” the trademark. Id. Here, however, unlike in An-

Hung Yao, Edible IP does not allege that Google has replicated the

goods and services Edible IP provides by using the “Edible

Arrangements” trade name, instead alleging that the trade name

was used in a separate and distinct service offered by Google

through its keyword advertising program.

In sum, given Edible IP’s express disavowal of the element of

consumer confusion in the complaint, it cannot state a claim for civil

theft arising from the use of its trade name and associated goodwill.

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Accordingly, the trial court did not err in granting Google’s motion

to dismiss Edible IP’s claim for civil theft.

b. Conversion

In Count 2 of its complaint, Edible IP asserts a claim for

conversion under OCGA § 51-10-1, which provides that “[t]he owner

of personalty is entitled to its possession. Any deprivation of such

possession is a tort for which an action lies.” The intentional tort of

conversion, we have explained, “consists of an unauthorized

assumption and exercise of the right of ownership over personal

property belonging to another, in hostility to his rights; an act of

dominion over the personal property of another inconsistent with his

rights; or an unauthorized appropriation.” Decatur Auto Center, Inc.

v. Wachovia Bank, N.A., 276 Ga. 817, 819 (583 SE2d 6) (2003)

(citation and punctuation omitted).

Although Georgia law may provide relief for the conversion of

certain intangible property, 12 we have never extended that tort to

12 See Trotman v. Velociteach Project Mgmt., LCC, 311 Ga. App. 208, 210-

11 (2) (a) (715 SE2d 449) (2011) (affirming grant of injunction where jury found

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claims based on the mere use of a trademark or on trade name

infringement, and we decline to do so now. Again, the cases Edible

IP relies upon are readily distinguishable. For example, in English

& Sons, Inc. v. Straw Hat Restaurants, Inc., 176 FSupp.3d 904 (N.D.

Cal. 2016), the court concluded that the plaintiffs had “converted”

the defendant’s trademark and other intellectual property by

wrongfully registering ownership of the trademark with the U.S.

Patent and Trademark Office – not just by simple use.13 See id. at

923 (2).

Other courts have likewise rejected attempts to expand the tort

of conversion to encompass the type of intangible property

traditionally protected within the scope of trademark law. See, e.g.,

Ortega v. Burgos, Case No. 12-CV-05421, 2014 U.S. Dist. LEXIS

defendant had violated the Uniform Deceptive Trade Practices Act in

converting course materials and other intellectual property stored on laptop).

13 San Francisco Arts & Athletics, Inc. v. United States Olympic

Committee, 483 U.S. 522 (107 SCt 2971, 97 LE2d 427) (1987), another case on

which Edible IP relies, was a highly fact-specific ruling involving an act of

Congress that granted the United States Olympic Committee unique statutory

rights that the United States Supreme Court expressly recognized were

different “from the normal trademark protection.” Id. at 531 (III). Of note,

under that act, the Olympic Committee was not required to prove that a

contested use was likely to cause confusion. See id.

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70457, at *3 (II) (E.D.N.Y. May 22, 2014) (dismissing trademark

conversion claim because “[n]ot only has this Court been unable to

find any authority that recognizes trademark conversion, the

leading treatise on trademark law states that, ‘[e]very court to

consider such a claim has rejected it’” (citation omitted)). See also 4

McCarthy, supra, § 25:9.50 (“Occasionally, a trademark owner will

allege, either along with or instead of a traditional infringement

claim, that its mark has been ‘converted’ by defendant. Every court

to consider such a claim has rejected it. The author agrees that the

tort of ‘conversion’ should not be stretched and deformed to

substitute for the traditional law of trademark infringement.”).

Accordingly, we cannot say that the trial court erred in

concluding that Edible IP had failed to state a claim for conversion.

c. Money Had and Received

In Count 3 of its complaint, Edible IP asserts a claim for money

had and received, alleging that Google currently holds a sum of

money belonging to Edible IP. The common law action for money

had and received “is founded upon the equitable principle that no

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one ought to unjustly enrich himself at the expense of another[.]”

Sentinel Offender Services, LLC v. Glover, 296 Ga. 315, 331 (4) (a)

(766 SE2d 456) (2014) (citation omitted). This action “is

maintainable in all cases where one has received money under such

circumstances that in equity and good conscience he ought not to

retain it.” Id. (citation and punctuation omitted).

Edible IP’s claim for money had and received again relies on its

unavailing assertion that, rather than selling advertising space,

Google is in essence selling Edible IP’s trade name and illegally

profiting from it. And, despite Edible IP’s insistence that our courts

have previously held that “the fact that [money] was received from

a third person will not affect [a defendant’s] liability,” 14 this holding

does not change the futility of Edible IP’s claim for money had and

received because Edible IP has no claim to the profits that Google

has earned by selling advertising. Accordingly, for this reason and

14 Haugabook v. Crisler, 297 Ga. App. 428, 432 (677 SE2d 355) (2009)

(citation and punctuation omitted). See also id. (“[I]t is immaterial how the

money may have come into the defendant’s hands, . . . if, in equity and good

conscience, he is not entitled to hold it against the true owner.” (citation and

punctuation omitted)).

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for the reasons discussed above in Divisions 1 (a) and (b), Edible IP

cannot, as a matter of law, show that it is entitled to profits that

Google earns through its keyword advertising program (even if the

program uses the trade name “Edible Arrangements”) or that Google

has been unjustly enriched at Edible IP’s expense, and this claim

likewise fails.

d. Georgia’s RICO Act

In the final count of its complaint, Edible IP asserts that Google

has violated Georgia’s RICO Act, OCGA § 16-4-1 et seq.,15 by

“obtaining . . . an interest in or control of personal property,

including but not limited to money, through a pattern of

racketeering activity.” Specifically, Edible IP asserts that Google’s

racketeering activity includes the theft of Edible IP’s rights in its

trade name. 16 Thus, this claim requires Edible IP to successfully

15 OCGA § 16-14-4 (a) states that “[i]t shall be unlawful for any person,

through a pattern of racketeering activity or proceeds derived therefrom, to

acquire or maintain, directly or indirectly, any interest in control of any

enterprise, real property, or personal property of any nature, including money.”

16 The RICO Act defines “racketeering activity,” which includes “[t]heft

in violation of Article 1 of Chapter 8 of this title[.]” OCGA § 16-14-3 (5) (A) (xii).

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plead the underlying claim of theft, which we have determined that

it has not done here. Accordingly, Edible IP’s RICO claim also fails.

Cf. Bowden v. Medical Center, 309 Ga. 188, 202-03 (3) (845 SE2d

555) (2020) (“However, because all of the alleged offenses depend on

proving that [the defendant] intentionally misrepresented the

amount it claimed to be reasonable charges in filing the liens, and

because we have already determined that the filing of liens

consistent with chargemaster rates in this case does not constitute

fraudulent activity, the RICO claims also fail.”).

2. Because we conclude that the trial court did not err in

granting Google’s motion to dismiss on the ground that Edible IP

has failed to state a cognizable claim for relief, we need not address

Edible IP’s remaining enumerations of error challenging the trial

court’s alternative grounds for dismissing the complaint. Because

the Court of Appeals correctly upheld the trial court’s dismissal, we

affirm that judgment.

Judgment affirmed. All the Justices concur, except Peterson, J.,

disqualified, and LaGrua, J., not participating.

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