Panel Finds New Infringement, Not Old Conduct
The judges highlighted that while the 2016 deal released 1-800-Flowers from prior keyword bidding claims, it did not preclude new claims arising after that date. They further emphasized that the Federal Trade Commission never approved any keyword bidding cessation plan as mentioned in the settlement.
Comparing the dispute to the 2014 In Re Managed Care case, the panel declared that Edible’s situation was “quite different” and that each post-settlement act of keyword bidding amounted to a separate, new claim.
Breach of Contract Claim Also Revived
In another win for Edible Arrangements, the appellate court found that Judge Calvert failed to address the company’s breach of contract claim altogether—reviving that as well.
Edible’s counsel, Edward A. Bedard, praised the ruling:
“We’re pleased with this decisive win. The court’s ruling makes clear that 1-800-Flowers cannot avoid scrutiny for its post-settlement conduct involving Edible’s protected marks.”
Attorneys Charles H. Hooker III and Adam H. Charnes of Kilpatrick Townsend & Stockton LLP represent 1-800-Flowers, while Jason S. Alloy, Jeremy U. Littlefield, and Edward A. Bedard of Robbins Alloy Belinfante Littlefield LLC advocate for Edible Arrangements.
