5 ms·

I dunno about fraud, but it certainly seems reasonable that it would be trademark infringement. The name "Saddleback BBQ" is Saddleback's trademark. If another

I dunno about fraud, but it certainly seems reasonable that it would be trademark infringement. The name "Saddleback BBQ" is Saddleback's trademark. If another company uses it to sell potential Saddleback customers (which these clearly are, since they searched for that name) products from a competitor, that seems like something a good trademark attorney would be interested in. (The potential hitch here is that most restaurants are small businesses, and small businesses aren't great about doing things like registering their trademarks. But you can still build a claim even around an unregistered trademark under certain circumstances: https://www.nolo.com/legal-encyclopedia/what-good-unregistered-trademark.html https://www.nolo.com/legal-encyclopedia/what-good-unregister...)

stefan_ 6y ago
Amazon has been sued successfully for this very scenario. They put up Google ads for "Ortlieb bags" then showed you generic bike bags.
jjeaff 6y ago
A trademark doesn't mean no one can use your name. You would need to prove that customers are being misled to purchase BBQ from another company thinking they are getting it from Saddleback BBQ. You can call out competitors, you can create an ad that says "4 out of 5 doctors prefer our BBQ to Saddleback BBQ" (assuming you've got the data to back it up). What these companies are doing is definitely misleading but I don't think anyone is accidentally purchasing from Applebees thinking they were getting Saddleback BBQ. It would be like mentioning a popular brand on your website in order to get the search engine traffic for that brand, even though you don't sell it.
- dsl 6y ago
  > What these companies are doing is definitely misleading but I don't think anyone is accidentally purchasing from Applebees thinking they were getting Saddleback BBQ. That is exactly what is happening. Say Saddleback isn't open on Tuesdays. Boom, that visitor now sees a long list of BBQ joints to order from that can still be delivered. Since they are in the mood for BBQ clearly, they are going to order from Uncle Bucks BBQ instead.
- elliekelly 6y ago
  I think you may be overstating the legal standard. I believe the bar is “creates confusion in the marketplace” rather than “misleading”. A customer clicking a link for $Restaurant and being taken to a page of competing restaurants may or may not be misleading but I definitely think its confusing. Every consumer who clicks that link expects $Restaurant’s page or a page dedicated to $Restaurant and doesn’t get it.
- pbhjpbhj 6y ago
  You're right in your first para, wrong in the rest. You can't lawfully squat a brands trademarks, neither in SERPs, domain names, nor in real world signposts. You can use trademarks for comparison but having a signpost - virtual or actual - that has another brand on it is tortuous infringement. Bait and switch is rightly unlawful.
  - jessaustin 6y ago
    "Tortious"?
    - pbhjpbhj 6y ago
      An action that is against a "tort", ie a civil law offence is "tortuous". It's like "criminal" but for civil law.
      - jessaustin 6y ago
        https://en.wiktionary.org/wiki/tortuous https://en.wiktionary.org/wiki/tortuous
        pbhjpbhj 6y ago
        Hmm, I've been using "tortuous" as the adjective for tort for probably a couple of decades and you're the first person to try to correct me. Clearly I'm using what Wiktionary classes as usage that's obsolete. Interestingly googling around the principle usage -- to mean pertaining to a tort -- of this spelling is in UK Terms of Use. It's quite hard to search though as often people will talk about tortuous caselaw [1], meaning 'twisting and turning'. Both usages can be in the same document, so Google Search - in particular - is no good here. Spelling "tortuous": I find supporting documents from the UK Home Office [3], the UK IPO (including in court proceedings for trademark), and in private practice references to UK tort law, eg [2] dated 2019. I don't consider my usage to be wrong per se but will consider using tortious in international forums (I so wanted to write "fora", lol); thanks for the query, terse as it was. It's possible we're all using it "incorrectly" of course. I work in the IP sector, we might all be drinking from the same fountain (eg perhaps reading past UK caselaw keeps us archaic). [1] https://www.worldtrademarkreview.com/brand-management/significant-blow-cadbury-uk-court-appeal-decision-puts-purple-colour-trademark https://www.worldtrademarkreview.com/brand-management/signif..., example of talking about an intricate case that twists and turns. [2] https://thelawreviews.co.uk/edition/the-intellectual-property-review-edition-8/1196335/turkey https://thelawreviews.co.uk/edition/the-intellectual-propert... talking about an infringement of a tort, as tortuous. [3] https://www.gov.uk/government/publications/references-to-the-court-of-justice-of-the-european-union/references-to-the-court-of-justice-of-the-european-union-2012 https://www.gov.uk/government/publications/references-to-the... , note I'm assuming the Home Office is the origin, it's Gov, but I don't really see mention of the department that owns that data.
bawolff 6y ago
I don't know, it doesn't seem that unreasonable to me. Walmart is allowed to advertise it sells Levi jeans, even though it sells other brands than Levi. If doordash didn't sell Saddleback food, i'd agree, but given that doordash distributes Saddleback products, seems reasonable to me they are allowed to advertise "buy Saddleback bbq here"

stefan_ 6y ago

Amazon has been sued successfully for this very scenario. They put up Google ads for "Ortlieb bags" then showed you generic bike bags.

jjeaff 6y ago

A trademark doesn't mean no one can use your name. You would need to prove that customers are being misled to purchase BBQ from another company thinking they are getting it from Saddleback BBQ. You can call out competitors, you can create an ad that says "4 out of 5 doctors prefer our BBQ to Saddleback BBQ" (assuming you've got the data to back it up). What these companies are doing is definitely misleading but I don't think anyone is accidentally purchasing from Applebees thinking they were getting Saddleback BBQ. It would be like mentioning a popular brand on your website in order to get the search engine traffic for that brand, even though you don't sell it.

dsl 6y ago
> What these companies are doing is definitely misleading but I don't think anyone is accidentally purchasing from Applebees thinking they were getting Saddleback BBQ. That is exactly what is happening. Say Saddleback isn't open on Tuesdays. Boom, that visitor now sees a long list of BBQ joints to order from that can still be delivered. Since they are in the mood for BBQ clearly, they are going to order from Uncle Bucks BBQ instead.
elliekelly 6y ago
I think you may be overstating the legal standard. I believe the bar is “creates confusion in the marketplace” rather than “misleading”. A customer clicking a link for $Restaurant and being taken to a page of competing restaurants may or may not be misleading but I definitely think its confusing. Every consumer who clicks that link expects $Restaurant’s page or a page dedicated to $Restaurant and doesn’t get it.
pbhjpbhj 6y ago
You're right in your first para, wrong in the rest. You can't lawfully squat a brands trademarks, neither in SERPs, domain names, nor in real world signposts. You can use trademarks for comparison but having a signpost - virtual or actual - that has another brand on it is tortuous infringement. Bait and switch is rightly unlawful.
- jessaustin 6y ago
  "Tortious"?
  - pbhjpbhj 6y ago
    An action that is against a "tort", ie a civil law offence is "tortuous". It's like "criminal" but for civil law.
    - jessaustin 6y ago
      https://en.wiktionary.org/wiki/tortuous https://en.wiktionary.org/wiki/tortuous
      - pbhjpbhj 6y ago
        Hmm, I've been using "tortuous" as the adjective for tort for probably a couple of decades and you're the first person to try to correct me. Clearly I'm using what Wiktionary classes as usage that's obsolete. Interestingly googling around the principle usage -- to mean pertaining to a tort -- of this spelling is in UK Terms of Use. It's quite hard to search though as often people will talk about tortuous caselaw [1], meaning 'twisting and turning'. Both usages can be in the same document, so Google Search - in particular - is no good here. Spelling "tortuous": I find supporting documents from the UK Home Office [3], the UK IPO (including in court proceedings for trademark), and in private practice references to UK tort law, eg [2] dated 2019. I don't consider my usage to be wrong per se but will consider using tortious in international forums (I so wanted to write "fora", lol); thanks for the query, terse as it was. It's possible we're all using it "incorrectly" of course. I work in the IP sector, we might all be drinking from the same fountain (eg perhaps reading past UK caselaw keeps us archaic). [1] https://www.worldtrademarkreview.com/brand-management/significant-blow-cadbury-uk-court-appeal-decision-puts-purple-colour-trademark https://www.worldtrademarkreview.com/brand-management/signif..., example of talking about an intricate case that twists and turns. [2] https://thelawreviews.co.uk/edition/the-intellectual-property-review-edition-8/1196335/turkey https://thelawreviews.co.uk/edition/the-intellectual-propert... talking about an infringement of a tort, as tortuous. [3] https://www.gov.uk/government/publications/references-to-the-court-of-justice-of-the-european-union/references-to-the-court-of-justice-of-the-european-union-2012 https://www.gov.uk/government/publications/references-to-the... , note I'm assuming the Home Office is the origin, it's Gov, but I don't really see mention of the department that owns that data.

bawolff 6y ago

I don't know, it doesn't seem that unreasonable to me. Walmart is allowed to advertise it sells Levi jeans, even though it sells other brands than Levi. If doordash didn't sell Saddleback food, i'd agree, but given that doordash distributes Saddleback products, seems reasonable to me they are allowed to advertise "buy Saddleback bbq here"