
In-N-Out sues startup DoorDash, says burger delivery is a trademark violation - pavornyoh
http://arstechnica.com/tech-policy/2015/11/in-n-out-sues-startup-doordash-says-burger-delivery-is-a-trademark-violation/
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DanBC
There's some more discussion here:
[https://news.ycombinator.com/item?id=10551312](https://news.ycombinator.com/item?id=10551312)

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crabasa
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-
permiss...](http://www.nolo.com/legal-encyclopedia/when-you-need-permission-
use-trademarks.html)

~~~
dragonwriter
> 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
_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
> 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.

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tfe
When I worked at TaskRabbit I made an In-N-Out delivery site
([https://news.ycombinator.com/item?id=4306834](https://news.ycombinator.com/item?id=4306834)).
It ran for a week or two before In-N-Out got wise and sent a C&D. We found out
at the time that they already had a long history of fighting delivery
services.

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?

~~~
bittercynic
Also corporate liberty. Does In-N-Out have the right to refuse to sell to
DoorDash couriers?

~~~
DannyBee
Yes.

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".

~~~
SilasX
I agree, but it would probably only be an antitrust issue if they refused to
deal with DoorDash _specifcally_ ; if they maintained a clearing house for
blocking _everyone_ who resold their goods without permission, that would
probably be okay, right?

At the same time, good luck trying to determine which orders are DoorDash...

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o0-0o
Look, anyone that has every been to in-n-out, or any other fresh burger place,
knows that the food tastes worse after a few minutes. why would in-n-out want
there food delivered, when it will arrive in a poor state. obviously, in-n-out
wants their food to be the best. delivered fries and burgers are not that
great.

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pavornyoh
>In-N-Out attorneys claim that DoorDash uses an "Imitation Logo" of In-N-Out
on its website.

The logos look nothing alike.

~~~
bsamuels
at the bottom of the site is a bunch of logos of the companies they buy from -
the in n out logo used to be there

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esonderegger
_Lawyers for In-N-Out say DoorDash 's delivery vehicles aren't compliant with
the California Retail Food Code, and In-N-Out would never authorize DoorDash
"or any other entity to deliver its food products to consumers without the
necessary food handling licenses and food safety procedures in place."_

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.

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koenigdavidmj
Okay, replace it with a note: "We tried to deliver In-n-Out, but they sued us.
We're happy to deliver burgers from their competitor, $name!"

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ebbv
This at first seems frivolous but after considering it I have to side with In-
N-Out. Consumers may think this company is an authorized/official delivery
service for In-N-Out, and if In-N-Out can't be certain of the quality of the
service that's going to possibly reflect badly on them.

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oldmanjay
When I first moved to the west coast, I was lead to believe that In-N-Out was
actually good. Instead, I paid a lot of money for ~McDonald's quality food,
and it took longer to get it.

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.

~~~
dboreham
"~McDonald's quality"?? If you mean within an order of magnitude, then I
suppose yes. Neither is the French Laundry. For me In-N-Out is clearly
superior. In fact, I use them vs McDonalds as an example to show my kids what
happens when Wall St. gets in charge of a business. One presumes that a long
time ago McDonalds did make food of equal quality to In-n-Out but decades of
squeezing out that extra 0.1% of profit margin every month has an effect.

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free2rhyme214
The short term profits were not worth what this lawsuit will cost them.

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radnam
Interesting way to get DoorDash to negotiate a favorable deal with In-N-Out.

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free2rhyme214
I don't think that's the case.

