4 ms·

IMNAL, but it seems that In-N-Out is correct here. There are a couple of exceptions [1] in trademark law for using logos without permission: 1. your use is for

by crabasa 11y ago

IMNAL, but it seems that In-N-Out is correct here. There are a couple of exceptions [1] in trademark law for using logos without permission: 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-permission-use-trademarks.html http://www.nolo.com/legal-encyclopedia/when-you-need-permiss...

arbuge 11y ago
>> That being said, there's nothing stopping DoorDash from buying food from In-N-Out and delivering it to people. I would imagine this is not true if they're representing themselves as a delivery service officially sanctioned by In-N-Out.
- crabasa 11y ago
  I'm not sure what you mean by "sanctioned". Trademark law is very specific and this lawsuit is entirely about the logo on the website. I'm not aware of any law that could prevent someone from going to a restaurant, buying food, and delivering it to whomever they wish.
  - delinka 11y ago
    A "sanctioned" relationship would mean that the restaurant does indeed endorse the reseller. And how's a consumer to know the difference?
  - dragonwriter 11y ago
    > I'm not aware of any law that could prevent someone from going to a restaurant, buying food, and delivering it to whomever they wish. 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.)
notahacker 11y ago
And in fairness, many other delivery startups do have formal partnerships with the restaurants and food outlets whose logos they bear...
DannyBee 11y ago
IAAL. 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 ;-)
- crabasa 11y ago
  Can you provide any links to more information on "imitation logos"? I'm completely fascinated that this is even a thing, because the entire point of a logo is to communicate the identity of a company visually to a consumer. The idea of a logo that visually communicates "In-N-Out" but isn't technically In-N-Out is super bizarre to me.
  - DannyBee 11y ago
    Ugh. 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)
    - dragonwriter 11y ago
      > I was going to link you to the doordash version of the logo, but they pulled it all from their site. The DoorDash version is in this article: http://www.tmz.com/2015/11/11/in-n-out-lawsuit/ http://www.tmz.com/2015/11/11/in-n-out-lawsuit/
deleted 11y ago
[deleted]
dragonwriter 11y ago
> 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. 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.)
- zzalpha 11y ago
  Storing, transporting, and selling food to customers is fairly regulated and requires inspection and permits. Does DoorDash have these? 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.
  - dragonwriter 11y ago
    > 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. If there are issues with transport and so forth, it's the driver's problem. 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.

by crabasa 11y ago

arbuge 11y ago

>> That being said, there's nothing stopping DoorDash from buying food from In-N-Out and delivering it to people. I would imagine this is not true if they're representing themselves as a delivery service officially sanctioned by In-N-Out.

crabasa 11y ago
I'm not sure what you mean by "sanctioned". Trademark law is very specific and this lawsuit is entirely about the logo on the website. I'm not aware of any law that could prevent someone from going to a restaurant, buying food, and delivering it to whomever they wish.
- delinka 11y ago
  A "sanctioned" relationship would mean that the restaurant does indeed endorse the reseller. And how's a consumer to know the difference?
- dragonwriter 11y ago
  > I'm not aware of any law that could prevent someone from going to a restaurant, buying food, and delivering it to whomever they wish. 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.)

notahacker 11y ago

And in fairness, many other delivery startups do have formal partnerships with the restaurants and food outlets whose logos they bear...

DannyBee 11y ago

IAAL. 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 ;-)

crabasa 11y ago
Can you provide any links to more information on "imitation logos"? I'm completely fascinated that this is even a thing, because the entire point of a logo is to communicate the identity of a company visually to a consumer. The idea of a logo that visually communicates "In-N-Out" but isn't technically In-N-Out is super bizarre to me.
- DannyBee 11y ago
  Ugh. 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)
  - dragonwriter 11y ago
    > I was going to link you to the doordash version of the logo, but they pulled it all from their site. The DoorDash version is in this article: http://www.tmz.com/2015/11/11/in-n-out-lawsuit/ http://www.tmz.com/2015/11/11/in-n-out-lawsuit/

deleted 11y ago

[deleted]

dragonwriter 11y ago

> 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. 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.)

zzalpha 11y ago
Storing, transporting, and selling food to customers is fairly regulated and requires inspection and permits. Does DoorDash have these? 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.
- dragonwriter 11y ago
  > 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. If there are issues with transport and so forth, it's the driver's problem. 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.