Antitrust Law Daily Wrap Up, ADVERTISING—M.D. Fla.: Search optimization company’s unfair competition claim against Google proceeds, (Aug 22, 2016)

By Michael Menzhuber, J.D., LL.M.

A motion to reconsider an order denying a motion to dismiss E-ventures Worldwide, LLC’s second amended complaint, to the extent it allowed E-ventures to proceed with its Lanham Act unfair competition claim against Google, Inc., was denied by the federal district court in Fort Myers, Florida. The court denied the motion to reconsider because Google’s arguments were only applicable to the Lanham Act’s false advertising provision (E-ventures Worldwide, LLC v. Google, Inc., August, 19, 2016, Steele, J.).

After E-ventures, a search engine optimization company, filed its second amended complaint that claimed, among other things, that Google violated the unfair competition provision of the Lanham Act by making false representations, Google filed a motion to dismiss. The court denied the motion to dismiss the Lanham Act claim because, while it was correct that E-ventures failed to identify any statement made in "commercial advertisement or production" and failed to allege an injury caused by advertising, these deficiencies were only relevant to a false advertising claim under Lanham Act § 1125(a)(1)(B) and not a Lanham Act unfair competition claim.

Google filed a motion for reconsideration with respect to the court’s decision to allow E-ventures to proceed with its Lanham Act unfair competition claim. The basis for the motion was Google’s assertion that the court made a "clear mistake" because E-Ventures had previously stated that it was not making a claim under that provision of the Lanham Act.

Google further argued that, although the court found that its motion to dismiss solely focused its arguments toward a claim under § 1125(a)(1)(B) and was therefore inapplicable to E-ventures’ claim under § 1125(a)(1)(A), the court should have sua sponte addressed arguments that Google failed to include in its motion to dismiss. The court disagreed. It determined that, because the arguments presented in Google’s motion for reconsideration were not presented in its motion to dismiss, they were not within the proper scope of reconsideration.

The court further noted that: (1) Google misinterpreted the court’s ruling in its motion to dismiss to mean that E-ventures had adequately stated a claim under § 1125(a)(1)(A); and (2) Googles’ motion to dismiss had been denied because its arguments were inapplicable to the claim stated in E-Venture’s second amended complaint under § 1125(a)(1)(A).

The case is No. 2:14-cv-646-FtM-29CM.

Attorneys: Alexis K. Arena (Flaster/Greenberg, PC) and David Solomon Schnitzer (Zung Clough, PLLC) for E-ventures Worldwide, LLC. Nathan Michael Berman (Zuckerman Spaeder, LLP) and Brian M. Willen (Wilson Sonsini Goodrich & Rosati, PC) for Google, Inc.

Companies: E-ventures Worldwide, LLC; Google, Inc.

Cases: Advertising FloridaNews