But in any case, an equally prominent button allows the user to save the restaurant within their Google account to find later.

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.

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.

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.

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.

Nor do they establish an exception to the rule in this District that, “as a general matter, websites and their contents may be proper subjects for judicial notice” if the party requesting notice provides the court with a copy of the specific webpage.

Dec. 13, 2021) (incorporating by reference collective bargaining agreement because it was referenced multiple times in the complaint and discussed extensively in plaintiff’s “framing [of] her legal claims” despite document not being “generally known”); City of Sunrise Firefighters’ Pension Fund v. Oracle Corp., 2019 WL 6877195, at *19–20 (N.D. Cal.

Exhibit 5: Google has offered Exhibit 5—which consists of a screenshot of Google’s Landing Page for one of Plaintiffs’ Lime Fresh restaurants—under both the doctrines of judicial notice and incorporation by reference.2 Plaintiffs articulate no plausible basis for why this publicly available website should escape judicial notice other than to again vaguely accuse Google of submitting it for its “truth”—an argument which is non-sensical given that the webpage merely displays a series of links to Plaintiffs’ website and those of its Delivery Providers.

The Court should likewise reject Plaintiffs’ argument that Exhibit 5 is not incorporated by reference because Plaintiffs’ FAC “does not cite to [it]” and that it is not “sufficiently related to Plaintiffs’ allegations to warrant consideration,” RJN Opp.

Case No. 3:22-CV-01462-VC contend that the Google Landing Page for the restaurant operated by Plaintiff Left Field Holdings LLC is not cited in the FAC.

PLEASE TAKE NOTICE THAT on September 29, 2022, at 2:30 p.m., or as soon thereafter as counsel may be heard, before the Honorable Vince Chhabria, Courtroom 5, 450 Golden Gate Avenue, San Francisco, CA 94102, Defendant Google LLC (“Google”) will and hereby does move this Court to dismiss the First Amended Class Action Complaint (“FAC”) filed by Plaintiffs Left Field Holdings I–VI and Everfresh Endeavors (collectively, “Plaintiffs”) in its entirety and with prejudice for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6) and 9(b).

The Amended Complaint does not allege that the Left Field Plaintiffs hold any registered tradenames or trademarks but identifies Everfresh as the owner of “LIME FRESH MEXICAN GRILL,” a service mark consisting of standard characters “without claim to any particular font, style, size, or color.” FAC, Ex. C, ECF 41-3.

And as the Ninth Circuit recognized twenty years ago, “[m]uch useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademark.” New Kids, 971 F.2d at 307.

In fact, Plaintiffs admit that they depend on Google’s Search and Maps functions to identify their restaurants by name and to provide consumers with relevant information, including their websites, phone numbers, and addresses.

Plaintiffs acknowledge that Google references only Plaintiffs’ restaurants’ names—not their logos, color schemes, or any other aspect of their brand identity.8 See FAC ¶ 55, Fig. 4 (showing “Lime Fresh Mexican Grill” in the same font as the restaurant description and service options).9 Accordingly, the second New Kids factor is satisfied.

In either case, Google’s motive is simple: insert itself into a significant stream of commerce irrespective of Plaintiffs’ and class members’ proprietary rights, and then leverage its position to advance its current and future business objectives.

Plaintiff Everfresh Endeavors is a Florida limited liability company which operates as the franchisor or licensor to the Left Field Holding entities identified above, with its principal place of business located at 4316 Clearbrook Lane, Kensington, MD 20895 (“Everfresh”).

Plaintiffs will ascertain all available means Google employs to direct users to the Restaurant Information Box, and/or its illicit Storefront and Landing Page when conducting discovery.

Large, Bold Tradename (at top) & Address Menu Virtual Shopping Cart Figure 5: Google’s Online Storefront landing page Component Parts (Captured approximately 9/4/2020)

In fact, consumers are likely to (and do) believe the Storefront is authorized, sponsored, or approved, by the restaurant whose tradename is displayed atop the webpage—and particularly when viewed in combination with the preceding confusingly placed “Order Online” button.

bothered to obtain permission from the restaurants to sell their products online, and the Delivery Providers to whom Google passed orders were not (and are not) permitted, by contract, to license Google’s conduct.

Google prominently features the restaurant’s tradename at the top of the page, above the restaurant’s address and menu, to give the user the distinct impression that the storefront and products are authorized and sponsored by the restaurant, when they are not.

and misappropriation of their goodwill and tradenames in connection with Google’s button and webpages, Plaintiffs bring this action to enjoin Google and to seek redress for Google’s deceptive and unlawful conduct.

Plaintiffs will ascertain all available means Google employs to direct users to the Restaurant Information Box, and/or its illicit Storefront and Landing Page when conducting discovery.

The parameters of the class may be refined through discovery and will be subject to Court approval and modification, but for the purposes of this complaint, Plaintiffs propose the following class definitions: a. All persons or entities in the United States who own or operate restaurants or businesses in the food service or restaurant industry as to which Google placed an “Order Delivery,” “Order Pickup,” or “Order Online” button under the restaurant’s or business’s tradename on Google’s search results page or Google’s maps page, and captured customer orders through Google’s Storefront under the restaurant’s or business’s tradename.

None of these cases supports judicial notice where notice of a document is contested.

None of this material qualifies as either a proper subject of judicial notice or matter that is incorporated by reference into the complaint. a.

Perhaps most importantly, though, none of these documents contradicts in any respect Plaintiffs’ allegation that PLAINTIFFS’ OPP’N TO GOOGLE LLC’S REQUEST FOR JUDICIAL NOTICE 8 CASE NO.

None of these webpages’ authenticity is subject to dispute, and they are properly subject to judicial notice.