By: Josh H. Escovedo
Everyone on the West Coast knows In-N-Out Burger. For some of us Californians, the burgers may even be considered a state treasure. Doordash, on the other hand, is much less recognizable. It is an on-demand delivery service that connects its customers with local businesses. According to Doordash, it enables its users to purchase food from merchants and have it delivered within 45 minutes. While providing this service, Doordash delivered In-N-Out food products to its customers all across the nation. Unfortunately for Doordash, this seemingly innocent, and mutually beneficial, conduct resulted in it being sued in the United States District Court for the Central District of California for trademark infringement, trademark dilution, and unfair competition.
In-N-Out filed its complaint against Doordash on November 6, 2015. In the complaint, In-N-Out contends that it has not authorized Doordash to deliver its food products and that Doordash is not its affiliate. Despite these facts, In-N-Out contends that Doordash delivers food from In-N-Out and utilizes a colorable imitation mark, as well as several of In-N-Out’s registered trademarks. According to In-N-Out, the intent of this conduct is to confuse consumers as to Doordash’s authority to deliver In-N-Out’s products.
In-N-Out also contends that despite Doordash’s delivery vehicles being mobile food facilities as defined by the California Retail Food Code, Doordash does not comply with the Food Code requirements.
In-N-Out contends that the requisite likelihood of confusion exists because actual and prospective customers are likely to believe that Plaintiff has approved or licensed Doordash’s use of In-N-Out’s marks. Alternatively, In-N-Out contends that consumers would assume that Doordash is somehow affiliated with In-N-Out. According to In-N-Out, Doordash’s use of the In-N-Out marks not only implies that Doordash sells In-N-Out products, but also that the quality and services are the same as if the consumers had purchased directly from In-N-Out. Now, I find that to be a bit of a stretch, and I’m curious to see how In-N-Out will establish that, but that is its contention. In-N-Out, however, claims that the quality of services offered by Doordash, are nowhere near those of In-N-Out. Specifically, In-N-Out alleges that Doordash does not adhere with the Food Code’s requirements concerning food safety and handling practices.
I suspect that these allegations concerning food safety and handling practices are the driving force behind this lawsuit. Although claims are regularly filed to protect trademark rights, this is an interesting situation when you take a step back. Here, Doordash’s delivery of In-N-Out’s food products to consumers could arguably help In-N-Out’s bottom line by making it available to its consumers who, for some reason, are unable to get to an In-N-Out. It is hard to see how the use of In-N-Out’s marks for this purpose could harm the burger conglomerate. But that conclusion assumes that there are no food safety compliance issues. If those allegations are true, In-N-Out’s objection to Doordash delivering its food seems reasonable. But I have some reservations regarding whether a trademark infringement/dilution lawsuit is the proper vehicle for a resolution.
I am uncertain whether In-N-Out will be able to demonstrate that consumers would actually place the blame for delivery issues, such as cold food, on In-N-Out. I have faith that consumers are more intelligent than that. But with that said, In-N-Out does not have to go that far to prove its case. It only needs to establish that Doordash’s use of the marks creates a likelihood of confusion regarding In-N-Out’s association or approval of Doordash’s services. And that is much easier.