When can Others Exercise Fair Use of the Franchise Name?

Fast Food-3

 

In-N-Out Burger has no relationship with DoorDash.  Yet, DoorDash is offering and delivering In-N-Out Burgers.  In-N-Out Burger has a beef with this.  In-N-Out Burger has filed a complaint against DoorDash.  In a statement to eater, In-N-Out Burger Spokesperson says:

DoorDash is using our food and trademarks in a way that implies we have some kind of partnership or agreement with them, when that is not the case. We have asked DoorDash several times to stop using our trademarks and to stop selling our food. Unfortunately, they have continued to prominently use our trademarks and serve our food to customers who believe that we are responsible for their delivery.

http://www.eater.com/2015/11/11/9714840/in-n-out-doordash-delivery-lawsuit

 

How can this be?  Can some do that?  Can someone else use your trademark?  Trademarks are words, sounds, symbols, which tell the consumer [buyer] who made or is providing the good or services being offered.  The theory is that customers buy products or goods based on the maker or provider.  Trademark laws and principals prevent the use of other trademarks in way that leads to customers being confused about who is the maker or provider of services.  Trademarks' protection, has nothing or little to do with protecting trademark owners [unlike copyright and patent protection, which the creator or inventor].

 

Under limited circumstances, others may use your trademarks, for example to denote or reference your products or goods.  Hence, this is perhaps DoorDash’s defense.  This defense goes something like this:  ‘We, DoorDash, may use In-N-Out Burger trademarks, because we are referring to the actual In-N-Burger products.  We are not offering In-N-Out Burgers knockoffs.  We deliver the real thing.  There is no confusion here.’

 

Read Why Trademarks Should Only Be Used as Adjectives.  Click here or go to:  http://wp.me/p2wEH7-2YZ

 

This argument is called fair use.  There are number cases were fair use claims have been upheld and the use of the trademark is found permissible by the courts, dispute the trademark owner discontent.  Lexus.com is a notorious example.  A re-seller of the Lexus cars secured the url www.buy-a-Lexus.com to sell used Lexus cars.  The court held the re- seller's use of the Lexus name in the re-seller's url was permissible because the resale was selling used Lexus cars.

Trademark Fair Use

Then there are cases where fair use has not been upheld by the court.  We will follow the case.  As of this posting DoorDash has not filed an answer in the case.

 

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