I actually kind of get this. Lets say you use the service and food you get makes you ill. If you had gotten it directly from said restaurant, its directly between you and them. If you use this service…who is at fault? Just sort of makes some sense.
Streisand Effect in action… I had no idea I could get In-N-Out delivered. God help my waistline.
In-N-Out explains its belief that consumers would be confused by another company delivering its burgers.
Does In-N-Out deliver it’s own food? No? Then how can there be any confusion? Does DoorDash claim to be In-N-Out Burger in any of its advertisements or website, etc? Does it claim to have a partnership or deal with In-N-Out Burger rather than just being a third-party-delivery company? I doubt it. What’s worse, does this service get In-N-Out Burger more business since it involves getting customers who don’t want to go get their own and would just get food elsewhere if this service didn’t exist? Of course.
All I want to know is, will DoorDash deliver across state lines?
All I want to know is, will DoorDash deliver across state lines?
I want them to deliver to the UK.
Well, realistically I wouldn’t I guess, but I could really do with an In-n-Out right now.
I’d tend to lean towards “whoever you gave your money to”. The restaurant might ultimately be at fault, but I’d think you would have to go after the food service first. Could be wrong, though.
Situation gets stickier with services that have you order directly from the restaurant and then just pay them to pick it up, of course…
I am three hours away from the nearest in n out burger and let me say, after watching that interview with the very hot CEO of in n out, I am miiiiighty tempted to hop in the car…
In-N-Out is going to lose this one, hard. This is a simple supply-chain issue, and trademark law is being misapplied here. In-N-Out is trying to get a judge to assign new rights to trademark holders - ones that would have far-reaching harmful consequences. If In-N-Out gets its way, it would mean that no company can ever advertise what they sell without the originating company’s permission - every product’s originating company’s permission. As a store owner I can tell you that this is absolutely unfeasible; you buy products from middle-man warehouses, not from the manufacturers. It is very rare to have contracts with any individual manufacturers except the very biggest - and usually only if they run their own wholesale operation.
… and even if I am “confused” … so what? I still get a burger, they still get a sale, and it’s odds on that both In-N-Out and DoorDash will be hearing from my credit card again soon.
For first sale doctrine to occur, you’ve got to own the product first. They are advertising burgers they don’t own yet and won’t buy until after you order.
But, more specifically, the product must not be substantially altered. Part of In-N-Out’s quality is freshness; delivering 10-minute-old burgers won’t be fresh, and I think they’ve got a case that the product has been altered.
Trademark infringement would occur if people are likely to be confused that In-N-Out endorses or supports DoorDash’s delivery. If people are likely to think that this is done with In-N-Out’s permission, then the trademark is infringed.
It doesn’t matter that DoorDash is creating more sales for In-N-Out. In-N-Out doesn’t get to control how the burgers get delivered, which could create an unpleasant customer experience, which in turn degrades the brand they’re trying to promote.
I’d tend to lean towards “whoever you gave your money to”. The restaurant might ultimately be at fault, but I’d think you would have to go after the food service first. Could be wrong, though.
Actually you would end suing both and then having the two fight in front of jury as to who’s fault it is. This is called an interpleader action. You get to watch them bloody each other and then collect the jury award.
Tough to claim the burger is “altered” by that any more than it would be if you got the carry-out/drive-thru order yourself and drove it home…
By that logic, almost anything you buy from a third party has “altered” from the original time it was sold. I think the important bit would be whether a 10-minute-old burger that’s been delivered is materially different in any way.
OK, but when is Tim Hortons going to sue In-N-Out for using Double Double?
Pretty much all non-perishable items from a 3rd party wouldn’t be altered … a hammer, a box of nails, toilet paper, books, etc. You couldn’t tell if these items are 10 days or 10 months old.
If people are likely to think that this is done with In-N-Out’s permission, then the trademark is infringed.
I disagree. You don’t need permission to deliver food from a business to another person, so why would In-N-Out be perceived as giving permission?
In-N-Out doesn’t get to control how the burgers get delivered
This is true if I pick up In-N-Out Burger and bring it home to my family. Once they make the sale and hand off the product, their part of the transaction is over.
which could create an unpleasant customer experience, which in turn degrades the brand they’re trying to promote.
Trademark Law relating to confusion is about protecting customers from misrepresentation and fraud, not companies from having their brands being purchased and delivered by an intermediary. I wouldn’t be confused about an eBay seller’s relationship with the manufacturer of the product they’re selling me, so why would I be confused about DoorDash’s?
…Rust? Just about everything is perishable… it’s just a matter of the time scale you’re talking about.
Has there actually been a case where the normal effects of the passage of time have been ruled as “alteration” for the purposes of bypassing the first-sale doctrine?
The burgers aren’t being “materially altered” by the delivery company. They’re simply being moved.
I couldn’t tell from the articles,
Does Doordash sell the food+service, or the service alone?
I mean does the customer buy the food + pay for delivery or does the customer buy food Doordash has purchased including a surcharge for the additional service?
That’d all be in how Doordash describes the service to the customer. If they are strictly delivery agents then they are the agents of the customer and no confusion is possible. If that’s what they can show then In N Out might be limited to restricting Doordash use of their trademark within the app and (stupidly) attempting to refuse service to DoorDash drivers.
Even if it isn’t clear to the customer, if they are strictly delivery agents then In N Out is immune from any liability with regard to delivery vehicle standards, and their reputation being harmed because people are stupid is just a risk we all face isn’t it? I might have a bad association with In N Out if the customer in front of me is blasting Leonard Nimoy at high volumes, I can blame it on In N Out, but it don’t mean shit.
They can choose who to associate with to a degree, but this is a stretch IMO, dependent on the language Doordash provides it’s customers, whether they understand it or not. If that burger’s FOB to the end customer is the drive-thru window according to all parties involved, then In N Out is just thrashing in anger. But maybe they’ll get a taste of that 600 million before a court is seen, along with having their logo removed. They can’t prevent Doordash from offering to pick up food their though AFAIK, except at POS.
