> DoorDash uses our brand name “Saddleback BBQ” right in the advertisement.
> Possibly the most maddening thing is that if a customer clicks on the link, it does NOT take them to a webpage to order from Saddleback BBQ. It takes the user to a general page to order BBQ from anyone that serves BBQ. At the top of the list? Applebees.
Well isn't that plain fraud? (And no adding some * somewhere with a disclaimer doesn't make it not fraud. The point is that it intentionally misguides/tricks/manipulates the user with the intention of harming the given brand (by on-the-fly replacing it)).
EDIT(clarification): It's like going into a shop and asking for a specific samsung tv and the salesman goes and comes back with a philipps tv saying here is your tv, the price is .... Sure if you look clearly at it it's not the PC you asked for but if you are in a hurry or social insecure you might still end up buying it even through you didn't want to.
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-unregister...)
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"
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.
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.
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.
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).
If "tortuous" didn't already have a completely different useful meaning, I wouldn't object. Calling harmful behavior "tortious" shouldn't be ambiguous. I'm not sure what happened in olden times, but over the last decade "tortuous" has dominated because of clueless spellcheck.
It's just a slight misspelling. It should be "tortious" instead of "tortuous" [1]. Interestingly, my spell checker does not recognize the former, but it does the latter.
> 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.
I _really_ hope this results in real litigation, because even just this one example of screenshots of the flow, it is egregious false advertising and trademark infringement.
This should be open & shut huge fines for DoorDash, damages paid to this restaurant (and many others), and enforcement to prevent it from happening again.
People working for these companies and facilitating this should be ashamed of their employer and either quit or vocally demand changes internally.
It would depend on the terms of service. If it clearly outlines their self-serving goals when spending "your" advertising dollars, then it seems it falls back to the owners for signing into such an agreement.
It must be really difficult out there for so many minimal margin businesses to make such Faustian bargains. Then again, I never really understood how Groupon was able to do it either. Is the "restaurant owner" marketplace really that unsophisticated, or is it so bespoke that it's incredibly difficult for any one owner to fully do their diligence?
I think a closer analogy is a shop hanging a poster out front saying "Buy Samsung TV's here!" When you ask the shop keeper about the sign, they take you to the TV section where there is a huge philipps tv display says that the TVs are in here.
DoorDash isn't telling you that Applebees is Saddleback BBQ, they are just not making it as easy as they could to help you find what you are looking for.
Strongly disagree. Clicking on the link for Saddleback BBQ is effectively saying "take me to their ordering page" and I don't see how you could reasonably expect otherwise.
Fraud is hard to prove because you have to prove intent, but this at best incompetence, almost assuredly false advertising, and pretty clearly fraud although good luck proving it in court.
FWIW the measure of trademark infringement is balance of probability, as it's civil law. So that would probably be the best way to combat it. Damages are probably less.
I don't get this thread. The link is marked as an ad. How is it even remotely surprising that an ad spoke that is misleading? Yes, they're doing something wrong here, but the thing they're doing wrong is also standard industry practice--take out ads on every remotely related keyword for your own site that may or may not sell the specific product listed in the ad.
> Possibly the most maddening thing is that if a customer clicks on the link, it does NOT take them to a webpage to order from Saddleback BBQ. It takes the user to a general page to order BBQ from anyone that serves BBQ. At the top of the list? Applebees.
Well isn't that plain fraud? (And no adding some * somewhere with a disclaimer doesn't make it not fraud. The point is that it intentionally misguides/tricks/manipulates the user with the intention of harming the given brand (by on-the-fly replacing it)).
EDIT(clarification): It's like going into a shop and asking for a specific samsung tv and the salesman goes and comes back with a philipps tv saying here is your tv, the price is .... Sure if you look clearly at it it's not the PC you asked for but if you are in a hurry or social insecure you might still end up buying it even through you didn't want to.