Misrepresentation isn't fraud but it is still not legal. You can't pass yourself off as someone or some entity that you are not. See also: 1-900 numbers pretending to be 'the company' but actually just switchboards connecting you through to the company that they pretend to be.
Yes indeed. I guess I will use this comment to explore its objectionable properties. I think I can come up with a somewhat nuanced reason for objection (not saying this has any bearing on legality). Let me talk it through.
Here goes:
The Resturant gets paid and the customers get food. The delivery service adds value and gets paid for it. If someone doesn’t realize doordash is not the Resturant by now... who cares? As long as the restaurants reputation is not hurt... (here’s were the issues start)
To that end, if I am the Resturant, I see that I can add my own delivery service, undercut doordash by a bit, and make more money, and control my reputation by employing people who have incintives aligned with me, then great! Thanks doordash, for showing me the way.
Ah, but can I? Maybe not without forming a power group with other restaurants (or some other economic structure..?), as the cost of adding a “real employee” may be greater than the margin added by the delivery service. I need a structure that both aligns incentives between delivery service and Resturant, and is cost effective. Since restaurants weren’t already doing this, probably it has to happen at the meta-Resturant level of it can be done while preserving reputation at all. (Of course, the difficulty of it depends on the food being served, so that’s why, e.g. pizza was already being delivered.)
Mr. Wave may have meant legally objectionable as in "the objection that would be the core of the legal case" or "the legal system objects to this". Similar to how a legal complaint doesn't mean someone whining.
If they did then what do they think is the infraction or offence that is being committed? They're being objectionable by committing or infracting... what? What law or regulation would they be breaking?
1125(a)(1) is pretty unambiguous in this context. If Grubhub is using a restaurant's name to "deceive as to ... the origin, sponsorship, or approval of his or her goods", that's cause for civil action.
California also has a new law explicitly addressing this issue:
... and yes, there's an aptly-named website called https://www.grubhublawsuit.com/ describing a class-action lawsuit on this specific topic.
And no, that website isn't an infringement of Grubhub's mark if it's not likely to be confused with Grubhub's business. (It'd be a different story if Grubhub were a law firm in the business of filing class action lawsuits.)
You're allowed to use trademarks to factually describe what a product is.
Your linked law suit is about something entirely different to what's being discussed in this thread - that's about describing restaurants as shut when they aren't.
You're not allowed to use trademarks to masquerade as the other party, especially if you're then trying to conduct business as if you were that other party.
Taking a step back: is there any trademark usage that you view as infringing?
Using an example from another side discussion: I hope we can agree that if you made a laptop and called it a Macbook Pro, Apple would sue the heck out of you, and they'd be in the right. Where we seem to disagree is whether it's infringement if you set up a storefront, name it "Apple Store", and exclusively sell products that you've purchased from an Apple-run Apple Store.
My definitely-not-a-lawyer reading of this even seems like there’s a decent case to be made, by the definitely-not-legally-exhaustive “required elements” there. The goodwill is their reputation, misrepresentation is obvious, and damage to their brand would be negative reviews (“food was cold, would not buy again!”) on Google or similar sites.
> The law of passing off prevents one trader from misrepresenting goods or services as being the goods and services of another, and also prevents a trader from holding out his or her goods or services as having some association or connection with another when this is not true.
But the food isn't being misrepresented! It is the food of the restaurant. Passing off means pretending the product is something it isn't. That isn't what is happening here at all.
You and a few others seem to be under some kind of mistaken understanding that the food is 'fake' or from a fraudulent dark kitchen not actually associated with the restaurant? That's not the case. It's the actual real food from the actual restaurant, resold.
That is one circumstance covered but not the only one.
I'm not under a mistaken understanding. I'm explicitly saying that you might not have to misrepresent the food itself: if you insert yourself as an intermediary but claim to be the underlying provider, there's potential for confusion and damage to the goodwill of the underlying provider, and that is what passing off fundamentally protects against.
I don't know if it would fly, but you asked and that's a place a case might be found.
The broader point here: it's one thing to advertise selling someone else's product. It's another to _pretend to be them_.
Trademark law, mostly. If I open an Apple Store, I'm gonna get a lot of lawsuits headed my way in no time. You can't just use another company's logo and name without their permission.
Somewhere in the product description, advertising, is the word "FOR".
Lightning cable FOR Apple iPhone.
Belking trying to sell the same cable as "Apple iPhone Lightning cable" would be problematic. Leaving aside licensing issues.
The proof is in the pudding. Go to one of the websites they register for a restaurant, and see just how many references to "We are not the restaurant, but we are reselling and delivering their food". Hint: rather few.
Call the number on the website. "Hello, I can take your order for [restaurant name]!"
"Is this [restaurant]?"
"I can take your order!"
Because all of the above isn't defensible. They're not just (re) selling the restaurant's food, they are implying that they -are- the restaurant.
Behavior here becomes important. Deception and context. Why in these cases if Deliveroo/Uber/etc were comfortable with their process would they not say "This is Uber Eats, and we can take orders for [restaurant]"? This again comes back to one of those definitions of fraud, "dishonestly obtaining financial advantage (your cut of the order, inflated pricing, etc) by deception (explicitly stating or repeatedly implying that you are the restaurant)".
and other vague hand-waving answer designed to imply that you are talking to the restaurant and avoiding the answer, "No this is a call center for a delivery service".
Except macrumors is obviously a news/gossip site and makes no effort to pass themselves off as an actual Apple-operated website.
apple-sf.com (and the various food delivery sites being discussed) pass themselves off as the restaurant. It's not clear to a casual user that the order is being processed by a 3rd party.
Except this kind of trademark abuse absolutely does happen. There was a post on HN about it yesterday [1].
Uber successfully had an app taken down that helped drivers determine whether Uber had cheated them out of wages they were owed. The important thing is that unless the people of UberCheats have a lot of money and time to burn they can't really challenge Uber's actions here.
Hell, a few weeks ago Apple forced a company to change their logo of a green pear because they claimed it was infringing on the Apple logo[2].
And I'd hate to live in a world where you can drag anyone you want before a judge because you don't like what they're doing.
I don't like the colour of your shirt, so I'm going to say it's objectionable. It doesn't break any laws or infringe any regulations, but I want a judge's opinion on it anyway.
Why would you hate that? The judge's opinion would be "the shirt is not unlawful" and "you're wasting court time, have a fine". How would that harm you?
In the case of passing off a service you offer as begin the service of another company, there is a clear legal case to answer. And as I recall this is settled caselaw in the UK and the people pretending to be other companies are in the wrong.
Acceptability isn't usually a binary. Legality is the cutoff point at which we decide you should be punished for unacceptable behaviour, but it's perfectly possible for behaviour to be both unacceptable but legal.
Consider:
- Cutting your grass at 8am when your neighbour works nights.
- A well off person putting their child up for adoption because they don't want the hassle.
- Payday loans given to people you know won't be able to pay them off, ensuring they pay you far more than the value of the loan.
- Banks processing payments out of order to trigger overdraft fees that would otherwise not have been collected.
In many environments, fraud contains a definition of "dishonestly obtain financial advantage by deception".
Your example is flawed. It's not a crime or fraud to resell a product.
It is still fraud, not merely objectionable, to resell a product while in every way possible acting as if you are not a reseller but the original producer.
