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Flower Shop’s Use of Competitor’s Name on Website Not Deceptive Sales Practice

Image of a flower arrangement on a Web page displayed on a laptop computer

Court rules a Wooster flower shop could use, the trade name of a competing flower shop’s name, to direct customers to its website.

Image of a flower arrangement on a Web page displayed on a laptop computer

Court rules a Wooster flower shop could use, the trade name of a competing flower shop’s name, to direct customers to its website.

Green Thumb Floral & Garden Center did not commit a deceptive trade practice when it used the website name, the trade name of a competing flower shop, to direct customers to Green Thumb’s website, the Ohio Supreme Court ruled today.

A Supreme Court majority affirmed a Ninth District Court of Appeals decision finding that Wooster Floral & Gifts, owner of the trade name Wooster Floral, failed to prove that consumers typing in on their web browsers were confused when they landed on Green Thumb’s website.

Writing for the Court majority, Justice R. Patrick DeWine stated a deceptive trade practice requires proof that a consumer is confused about the “source, sponsorship, approval, or certification of good and services.” He stated “Green Thumb’s website makes it perfectly clear” to internet users that they are ordering goods from Green Thumb.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy and Patrick F. Fischer joined Justice DeWine’s opinion. Justice Michael P. Donnelly concurred in judgment only.

In a dissenting opinion, Justice Judith L. French wrote the Supreme Court ought to adopt a standard used by the Sixth U.S. Circuit Court of Appeals to determine whether a competitor’s use of a trade name is likely to cause confusion. Justice French noted federal courts have addressed the issue of “initial-interest confusion,” when a website uses someone else’s trade name as its website domain name. Although proving deception might be difficult for a challenger like Wooster Floral & Gifts, Ohio state courts should adopt the same standards as the federal court, she wrote.

Justice Melody J. Stewart joined Justice French’s dissent.

Prior Owner Gives Up Domain Name
Wooster Floral was a flower and gift shop, which operated in Wooster from 2000 to 2015. The business owned a few domain names to attract customers via the internet, including and

In late 2014, shop owner Kimberly Gantz decided to close the shop and did not renew the registration of the domain name. Gantz agreed to sell some of Wooster Floral’s assets to store manager Katrina Heimberger for $1 and later dissolved the business. Heimberger registered a new business with the Ohio secretary of state as Wooster Floral & Gifts and claimed the trade name Wooster Floral LLC was assigned to her.

Green Thumb is a competing floral shop in Wooster that has been in business for 50 years. When owner Claudia Grimes learned Gantz was about to close Wooster Floral, she discovered the domain name was available to purchase. 

Green Thumb uses other similar domain names such as and to redirect internet users to  In January 2015, Grimes purchased for this same purpose. 

New Owner Wants Web Name
When Heimberger took over the floral shop, she knew Gantz no longer owned and that Grimes had purchased it. She asked Grimes to give up the domain name, but Grimes refused, offering to sell the name to Heimberger for $2,500.

Heimberger found the request too expensive and, in 2016, she sued Green Thumb for trademark infringement and a violation of Ohio’s Deceptive Trade Practices Act, which is R.C. 4165.02(A)(2).

In the trial court, Wooster Floral & Gifts’ only evidence of customer confusion was that one customer posted a negative review about Wooster Floral & Gifts based on an order that appeared to be fulfilled by Green Thumb. Green Thumb testified that the complaint came from an order a customer received through a third-party flower purchasing network and not by a customer making a purchase by going through

The trial court ruled against Wooster Floral & Gifts’ trademark infringement claim because the shop did not have a registered trademark for Wooster Floral. The court also ruled against the deceptive practices claim because the Green Thumb website was clearly identified as Green Thumb Floral and had not used the trade name Wooster Floral on its webpages.

Heimberger appealed to the Ninth District, which in a split decision affirmed the trial court’s decision.

She then appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Trade Practice Law
Ohio’s Deceptive Trade Practices Act states that a person is engaged in a deceptive trade practice when, in the course of business, the person causes the “likelihood of confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods and services.” If a party is likely to be damaged by a deceptive trade practice, a court can grant an injunction to stop the deception and award damages.

Wooster Floral & Gifts argued there was likelihood of confusion because when typing into a web browser a customer would not be directed to Wooster Floral & Gifts, but rather to Green Thumb’s website. Green Thumb countered that the customer is not confused because once on the site, it is clear from the presentation that it is Green Thumb’s website and the person is ordering from Green Thumb.

“Thus, the dispute depends in a large part on what kind of confusion the law proscribes: confusion about where the words ‘’ typed into a web browser will lead or confusion about who is selling the products that a web user may ultimately choose to purchase,” the majority opinion stated.

The Court stated that the plain language of the Deceptive Trade Practice Act  is clear: the act seeks to prevent confusion about who is selling the products, not about where a domain name might lead. The Court ruled that under the law, it does not matter whether internet users are “initially confused about the origin of a website,” but, rather, whether users are confused about the source of the goods and services.

The Court ruled Wooster Floral & Gifts provided no evidence that customers who typed in and landed on the Green Thumb website did not know they were purchasing items from Green Thumb. Justice DeWine noted any customers who do not want to be on the Green Thumb webpage “can quickly extricate” themselves by hitting “  ” -- the back arrow button.

Initial Confusion Might Be Deceptive Practice, Dissent Stated
In her dissent, Justice French noted several federal circuit courts have adopted a concept known as “initial-interest confusion,” and use it to gauge whether a deceptive trade practice occurs when a someone uses another person’s trade name as a Uniform Resource Locator (URL), such as 

The dissenting opinion was critical of the majority’s failure to adopt a standard for analyzing whether a person’s use of a competitor’s trade name is likely to cause customers confusion about the source of the goods or services.  The dissent stated the Sixth U.S. Circuit, which hears federal court cases from Ohio, and other federal circuit courts have  adopted an eight-factor test to analyze the likelihood of confusion. She noted neither the Ohio Supreme Court nor the lower courts used the factors to assess Wooster Floral & Gifts’ claim. The dissent would remand  the case to the trial court to apply the federal test.

“Today, we have the opportunity to adopt a standard for lower courts to apply to (Deceptive Trade Practices Act) DPTA claims, but the majority squanders the opportunity away,” the dissent stated.

2019-0322. Wooster Floral & Gifts LLC v. Green Thumb Floral & Garden Ctr. Inc., Slip Opinion No. 2020-Ohio-5614.

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