In-N-Out sues startup DoorDash, says burger delivery is a trademark violation
arstechnica.com
arstechnica.com
1. your use is for informational or editorial purposes (for instance, you use the trademark as part of an article or story)
2. your use is part of accurate comparative product statements.
That being said, there's nothing stopping DoorDash from buying food from In-N-Out and delivering it to people. They just can't use the logo.
[1]: http://www.nolo.com/legal-encyclopedia/when-you-need-permiss...
I would imagine this is not true if they're representing themselves as a delivery service officially sanctioned by In-N-Out.
DoorDash isn't just delivering the food it buys, it is selling it (unlike a normal third-party restauarant delivery service, where the customer purchases food from the restaurant -- possibly with an extra delivery service charge -- and the restauarant hires the delivery company to delivery it to the customer.)
Selling food to customers is regulated and requires various permits, and selling food to resellers is separately regulated from selling to consumers (and the restaurants DoorDash is buying from may well not be properly permitted to sell to resellers.)
Sure, I can buy food at In-N-Out, drive it to someone, and give it to them, but if I start a business of reselling food from In-N-Out or other restaurants, there are a host of legal issues involved (and not just trademark issues of trading on those restaurants' brands and logos.)
This list is not really complete, but you are wrong because doordash doesn't use in-n-out's logo. They use an imitation logo.
Otherwise, they use only text, which falls under nominative fair use.
The only question is one of "are they suggesting sponsorship or endorsement by the trademark holder".
The answer is "maybe".
But that's easy to solve, put a note at the top that says that deliveries are performed by doordash, and not by the merchant.
Note: This is all just about the logo question. There are other issues like "control over your brand", etc. But they would not be covered by a logo lawsuit ;-)
I was going to link you to the doordash version of the logo, but they pulled it all from their site.
The purpose of the logo is mainly to make the site not look weird. Since they use logos for everything else, having this huge blank space would look odd. So they shoved something there.
As for the legality, under things like nominative fair use, doordash can only use as little of the trademark as necessary to identify to consumers. In this case, that is likely the words but not the symbol.
So if they actually used the symbol, they would be in trouble.
(In essence, in-n-out will argue this both ways. They will argue using a fake logo dilutes their brand, and that doordash can't use their logo if doordash tries)
The DoorDash version is in this article: http://www.tmz.com/2015/11/11/in-n-out-lawsuit/
If DoorDash is buying food and selling it to customers, then there are two areas where I can see problems, aside from the trademark issue:
(1) Storing, transporting, and selling food to customers is fairly regulated and requires inspection and permits. Does DoorDash have these?
(2) Even if DoorDash was legally permitted to sell food at retail, the places DoorDash is getting food from are themselves in the retail food trade but not generally in the wholesale trade; if DoorDash is a reseller, then selling to DoorDash is wholesale food trade, which is regulated differently, and by different agencies. The places DoorDash is buying food are, one would expect, generally not properly permitted to sell to resellers.
(IIRC, normal restaurant delivery services are contracted with the restaurants, which not only handles trademark issues, but also structures the transaction as a sale by the restaurant to the consumer -- where the delivery service may act as a contracted payment intermediary -- with the delivery service then being paid by the restaurant for delivering the food to the customer.)
The question is, do the folks who actually perform the deliveries?
DD is using the same trick Uber uses: they hire drivers but classify them as "contractors", which conveniently abstracts all the risk away from DD. So, just like Uber, if there are issues with transport and so forth, it's the driver's problem.
Of course, as with Uber, this is probably an illegal violation of federal labor regulations, as the employees are misclassified, and so they're likely to get nailed in a class action lawsuit, but...
the places DoorDash is getting food from are themselves in the retail food trade but not generally in the wholesale trade
See above. I'm not sure your characterization, here, actually represents how DD legally does business.
Its worth noting that that trick hasn't been completely legally successful for Uber, and even if the employer/contractor distinction breaks in DD's favor, that doesn't necessarily mean that the contractor and not DD is on the hook for all the food sales and distribution rules.
And, even if it does, that doesn't really solve the question of the legality of the operation, just whether it is DD or its deliverers whose actions would be prohibited by the non-trademark rules. But if DD deliverers were to start being targeted for enforcement actions, it would rapidly make it harder for DD to get deliverers.
It starts to bring up questions of personal liberty... can I hire someone (TaskRabbit, DoorDash) to do something on my behalf (buy In-N-Out), and act as my agent? And does In-N-Out have any basis for preventing me from doing that?
I would think the answer as of currently, is no. That is less because forcing that restriction would be legal or illegal, and moreso because when you buy food at in-n-out you are not waving any rights or signing any document. If for instance, before every sale of a burger they made you tap a screen saying "I agree this purchase is not for delivery" then yes, the delivery person/service could be sued for tortuous interference. Unless that happens, there is broad restrictions on what companys can do to restrict secondary sales.
The only caveat could be that restaurants are regulated for quality and health. If a lawsuit could prove that the delivery services are actually re-selling the food instead of merely delivering them, there might be a case there. Especially because I highly doubt these services have the relevant licenses to prepare and sell food. Its possible though.
Assuming it's only because they are doordash couriers, and not for any protected reason (race, gender, etc. In CA, even unconventional dress is protected).
Note, however, that if companies conspired together to refuse service to doordash couriers, that would be an antitrust violation known as "concerted refusal to deal".
At the same time, good luck trying to determine which orders are DoorDash...
The logos look nothing alike.
This, to me, seems like a valid concern. The folks at In-N-Out take the freshness of their food very seriously. If someone gets sick from an In-N-Out burger delivered by DoorDash, it's not unreasonable to assume this will have negative consequences for In-N-Out's reputation, not just DoorDash's.
Related: How is DoorDash getting away with delivering food and not complying with California's retail food code? That seems like a really bad idea.
Now I'm to believe people want this delivered? I supposed if you really needed to squeeze the last bit of edibility out of the food, sure, but I feel like the doordash premium makes this a fool's game.