In-N-Out vs. DoorDash

Case 8:15-cv-01826-JLS-JCG Document 1 Filed 11/06/15 Page 1 of 16 Page ID #:1
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RICHARD H. ZAITLEN (SBN 63283)

[email protected]
ROBERT WALLAN (SBN 126480)
[email protected]
JENNIFER A. SEIGLE (SBN 285670)
[email protected]
PILLSBURY WINTHROP SHAW PITTMAN LLP
725 South Figueroa Street, Suite 2800
Los Angeles, CA 90017-5406
Telephone: (213) 488-7100
Facsimile No.: (213) 629-1033
Attorneys for Plaintiff
In-N-Out Burgers
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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)
)
)
)
Plaintiff,
)
)
vs.
)
)
DOORDASH, a California company, )
)
Defendant. )
)
)
IN-N-OUT BURGERS, a California
Corporation,
Case No. 8:15-cv-1826

IN-N-OUT BURGERS COMPLAINT
FOR TRADEMARK
INFRINGEMENT AND UNFAIR
COMPETITION
JURY TRIAL DEMANDED
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Plaintiff IN-N-OUT BURGERS, a California Corporation (Plaintiff or In-
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N-Out) by and through its undersigned Counsel, files its Complaint and seeks a
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permanent injunction against Defendant DoorDash (Defendant or Door Dash).
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In support of its Complaint, Plaintiff alleges as follows:
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NATURE OF THE CASE

1.
This action concerns Defendants acts of trademark infringement and
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false designation of origin under the Lanham Act as well as unfair competition under
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both state and federal laws.
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4852-3771-5497.V7
JURISDICTION AND VENUE
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2.
The Court has subject matter jurisdiction over this matter pursuant to 15
U.S.C. 1121 and 28 U.S.C. 1331, 1338 and 1367. Plaintiffs claims are, in part,
based on violations of the Lanham Act, as amended, 15 U.S.C. 1051, et seq. The
Court has jurisdiction over the state law claims pursuant to 28 U.S.C. 1338(b),
and 1367.
3.
This Court has personal jurisdiction over Defendant, and for similar
reasons, venue is proper in the Central District of California pursuant to 28 U.S.C.
1391(b). Plaintiff is informed and believes that Defendant operates its food
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delivery business throughout the Central District of California, including throughout
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Los Angeles, Orange County, and the San Fernando and Conejo Valleys. Further,
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upon information and belief, a substantial part of the events or omissions giving rise
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to Plaintiffs claims occurred in this District, where Defendant advertises and
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operates delivery services. The effects of Defendants infringing acts have been felt
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in the State of California and in this District, where Plaintiff is located.

THE PARTIES
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4.
Plaintiff is a California corporation having its principal place of business
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in Irvine, California. Plaintiff operates a highly recognizable chain of restaurants,
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with over 300 locations in the United States.
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5.
Upon information and belief, Defendant is a California company, having
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a principle place of business at 531 Lasuen Mall, Stanford, California 94305.
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Defendant provides on-demand food delivery from numerous restaurants to
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customers who place orders through a mobile app or an Internet website.

PLAINTIFFS BUSINESS AND MARKS
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6.
Founded in 1948, Plaintiff operates a successful and popular chain of
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quick service restaurants offering made-to-order hamburger sandwiches and other
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products and services. Since at least as early as 1960, Plaintiff has continuously used
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federally registered trademarks and service marks comprising the words IN-N-OUT
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4852-3771-5497.V7
and IN-N-OUT BURGER as well as logos related to these marks in interstate
commerce in connection with its advertising, promotion, offering to provide, and
providing specially-prepared burgers and other products and services to consumers in
its restaurants.
7.
Celebrated for its fresh food and other high standards of quality,
Plaintiff consistently rates as the top quick service restaurant in customer satisfaction
surveys. In 2015, Zagat users rated Plaintiff as the favorite chain restaurant in Los
Angeles. In April 2015, Plaintiff earned the top ranking from consumers for the
third year in a row in the Limited-Service category in Nations Restaurant News
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annual Consumer Picks report. In 2014, the National Restaurant Association ranked
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Plaintiff as the nations top hamburger spot, head and shoulders above the rest.
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Also in 2014, OC Metro magazine named Plaintiff as the most trustworthy brand in
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Orange County for the second consecutive year, based on a consumer survey. In
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2013, the Quick Service Restaurant (QSR) Benchmark Study rated Plaintiff as
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Americas Favorite Burger Brand. In 2011, Zagats fast food survey lauded
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Plaintiff as the number one large quick service chain in the Top Food category. In
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2010, Consumer Reports ranked Plaintiff as the nations top burger sandwich chain.
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Plaintiff has amassed tremendous consumer goodwill over the decades.
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It is an iconic brand, and its products and services have acquired renown and a
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fiercely devoted fan base throughout the country, including in its home state of
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California.
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9.
Plaintiffs Federal Trademark and Service Mark Registrations for the
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IN-N-OUT mark include the following word and design marks (hereinafter, the
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Registered Marks) registered on the Principal Register of the United States Patent
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and Trademark Office, all of which are incontestable pursuant to 15 U.S.C. 1065:
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Exhibit
A
Mark
IN-N-OUT BURGER
U.S.P.T.O.
Registration
No.
1031096
Registration
Date
January 20,
Description of Services or
Goods
Cheeseburgers, hamburgers,
4852-3771-5497.V7
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Exhibit
Mark
U.S.P.T.O.
Registration
No.
and Design
Registration
Date
1976
French fried potatoes, hot

coffee, and milk (IC 030);
Restaurant services and
carryout restaurant services (IC
042)
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Goods
IN-N-OUT BURGER
and Design
1023506
Oct. 21, 1975
Restaurant services and

carryout restaurant services (IC
042)
IN-N-OUT BURGER
1031095
Jan. 20, 1976
Cheeseburgers, hamburgers,
French fried potatoes, hot
coffee, and milk (IC 30);
Restaurant services and carryout restaurant services (IC 042)
IN-N-OUT
1085163
Feb. 2, 1978
Restaurant services and carryout restaurant services (IC 042)
IN-N-OUT
1101628
Sep. 5, 1978
Milk and French fried potatoes

for consumption on or off the
premises (IC 029); Lemonade
and soft drinks for consumption
on or off the premises (IC 032)
IN-N-OUT
1101638
Sep. 5, 1978
Cheeseburgers, hamburgers, hot

coffee and milkshakes for
consumption on or off premises
(IC 030)
IN-N-OUT BURGER
and Design
1514689
Nov. 29, 1988
Shirts (IC 025)
IN-N-OUT BURGER
and Design
1516560
Dec. 13, 1988
Restaurant services and carryout restaurant services (IC 042);

Hamburger sandwiches and
cheeseburger sandwiches, hot
coffee, and milkshakes for
consumption on or off the
premises (IC 030); Milk and
French fried potatoes for
on or off the premises (IC 032).
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U.S.P.T.O.
Registration
No.
Registration
Date
Mark
IN-N-OUT and Design
1522799
Jan. 31, 1989

IN-N-OUT and Design
1525982
Feb. 21, 1989

IN-N-OUT BURGER
and Design
1528455
Mar. 7, 1989

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Goods
Exhibit
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Exhibit
Mark
U.S.P.T.O.
Registration
No.
Registration
Date
IN-N-OUT BURGER
and Design
1528456
Mar. 7, 1989

IN-N-OUT BURGER
and Design
1539451
May 16, 1989

IN-N-OUT BURGER
and Design
1960015
Mar. 5, 1996
Watches (IC 014); Gift

certificates (IC 016); Coffee
mugs and thermal mugs (IC
021); Baseball caps, letterman's
jackets, and cooks aprons (IC
025); Retail and mail order
services featuring watches,
novelty jewelry, key rings,
drinking utensils, clothing,
aprons and sporting equipment
(IC 042)
IN-N-OUT BURGER
and Design
2026720
Dec. 31, 1996
Hamburger and cheeseburger

sandwiches for consumption on
and off the premises (IC 030)
IN-N-OUT
2217307
Jan. 12, 1999
Watches (IC 014); Decals in the

nature of bumper stickers;
publications in the nature of
house organs; Gift certificates
(IC 016); Backpacks (IC 018);
Coffee mugs and thermal mugs
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Goods
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4852-3771-5497.V7
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Exhibit
Mark
U.S.P.T.O.
Registration
No.
Registration
Date
(IC 021); Shirts, baseball caps,

letterman's jackets, and cooks
aprons (IC 025)
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Goods
IN-N-OUT BURGER
and Design
3367471
Jan. 15, 2008
Financial sponsorship of race

cars and race car drivers (IC
036)
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10.
Registrations for a relevant sub-set of these Registered Marks are
attached hereto as Exhibits A-Q.

11.
Plaintiff owns all right, title and interest in and to the Registered Marks,
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and has obtained Federal Trademark and Service Mark Registrations for the
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Registered Marks for a wide range of food and other products and services,
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including, inter alia, restaurant services, hamburger and cheeseburger sandwiches,
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French fried potatoes, hot coffee, milkshakes, bumper stickers, backpacks and coffee
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mugs. Plaintiff also uses the Registered Marks for mobile restaurant services, and
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specifically on its food trucks in California and Texas. Plaintiff has been using its
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Registered Marks on food trucks for more than four decades in California, and for
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several years in Texas.
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12.
The Registered Marks have been used in interstate commerce to identify
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and distinguish Plaintiffs products and services for decades, and they serve as
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symbols of Plaintiffs quality, reputation and goodwill.
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13.
Through its restaurants and online store, Plaintiff has sold and continues
to sell goods throughout the United States.

14.
Plaintiff makes use of its Registered Marks in interstate commerce by
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displaying them on product packaging, menus, signage, mobile food trucks,
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promotional materials and advertising materials.
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15.
Plaintiff has invested millions of dollars in developing, advertising and
otherwise promoting the Registered Marks in the United States in an effort to create a
strong association between Plaintiffs products and services, its consumer goodwill
and its Registered Marks.
16.
As a result of the care and skill exercised by Plaintiff in the conduct of
its business, the high quality of its products and services offered under it Registered
Marks, and the extensive advertising, sale and promotion of Plaintiffs products
bearing the Registered Marks, the Registered Marks have acquired secondary
meaning throughout the United States, and the Registered Marks are widely
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recognized by the general consuming public of the United States as a designation that
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Plaintiff is the source of the goods and services bearing the Registered Marks.
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The Registered Marks are strong, arbitrary marks that warrant broad
protection in both related and unrelated product and/or service classes.

18.
Since the date of First Use of the Registered Marks, Plaintiff has
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manifested intent to maintain exclusive ownership of the Registered Marks and to
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continue use of the Registered Marks in interstate commerce in connection with
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Plaintiffs products and services.
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19.
Plaintiff has carefully monitored and policed the use of the Registered
Marks and maintains tight control over the use of the Registered Marks.
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Plaintiff adheres to the requirements of the California Retail Food Code
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including all standards for the prevention of contamination, ensuring time and
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temperature relationship, food storage, and food display and service.

DEFENDANTS INFRINGING ACTS
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21.
Upon information and belief, Defendant is a food delivery business,
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which promises delivery in an hour of a variety of food items from a number of
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restaurants in cities throughout the United States.
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22.
Plaintiff is not affiliated with Defendants delivery business, and has not
authorized Defendant to deliver its food products.

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23.
Despite the fact that Defendant is in no way affiliated with Plaintiff,
Defendant has advertised, and continues to advertise, that it delivers food from
Plaintiffs restaurants. In conjunction with these advertisements, Defendants
website and promotional materials feature a mock In-N-Out logo (the Imitation
Logo), which is a colorable imitation of Plaintiffs Registered Marks. Upon
information and belief, the Imitation Logo is intended to, and has, confused
consumers as to Defendants authority to deliver Plaintiffs food items. A sampling
of Defendants promotional materials featuring the Imitation Logo is attached hereto
as Exhibit R.
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24.
In addition, without authorization from Plaintiff, Defendant has used and
continues to use the Registered Marks to advertise and promote its delivery business.
25.
A sampling of Defendants promotional materials that unlawfully
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incorporate Plaintiffs Registered Marks is attached hereto as Exhibit S. Plaintiffs
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did not authorize, and would never authorize, Defendant to use the Registered Marks,
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or any colorable imitations of the Registered Marks.
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26.
Upon information and belief, although Defendants delivery vehicles are
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food facilities and/or mobile food facilities as those terms are defined under the
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California Retail Food Code (the Food Code), Defendant does not comply with
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Food Code requirements.
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27.
Plaintiff would not authorize Defendant, or any other entity, to deliver
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its food products to consumers without the necessary food handling licenses and food
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safety procedures in place.
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28.
Defendants unauthorized use of the Registered Marks and the Imitation
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Logo in its marketing and advertising materials creates a likelihood of consumer
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confusion because actual and prospective customers are likely to believe that Plaintiff
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has approved or licensed Defendants use of its marks, or that Plaintiff is somehow
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affiliated or connected with Defendant or its services or has been authorized by
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Plaintiff to deliver Plaintiffs food products. In fact, Plaintiff has not sponsored,
licensed, or authorized Defendants services.
29.
Defendants use of Plaintiffs famous trademarks implies that Defendant
not only delivers In-N-Out products to its customers, but that the quality and services
offered by Defendant is the same as if consumers had made purchases directly from
Plaintiff. Upon information and belief, the quality of services offered by Defendant
does not at all comport with the standards that consumers expect from Plaintiffs
goods and services. Further, Plaintiff has no control over the time it takes Defendant
to deliver Plaintiffs goods to consumers, or over the temperature at which the goods
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are kept during delivery, nor over the food handling and safety practices of
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Defendants delivery drivers. While Plaintiff adheres to the Food Code, on
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information and belief, Defendant does not adhere to such regulations, including with
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regard to compliance with required food safety and handling practices.
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30.
Plaintiff initially contacted Defendant on April 14, 2014 and requested
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that Defendant stop using Plaintiffs trademarks on its website, or in any other
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capacity, and refrain from delivering or offering to deliver Plaintiffs food as part of
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its services. Plaintiff sent a follow-up letter on May 2, 2014. On October 3, 2014,
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Defendants CEO and Co-Founder Tony Xu responded, indicating that Defendant
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had removed references to Plaintiff from its website.
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31.
However, on July 10, 2015, Plaintiff again sent a letter to Defendant,
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noting that Defendant had broken its promise, and, without authority, was accepting
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orders for and delivering Plaintiffs food, featuring In-N-Out on its website, and
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using the Imitation Logo, wherein Plaintiff demanded that Defendant immediately
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cease and desist the foregoing actions. Defendant did not respond to the July 10
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letter. A follow-up letter on August 27 demanding that Defendant immediately cease
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and desist all use of Plaintiffs trademarks and discontinue leaving DoorDash flyers
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in In-N-Out Restaurants was likewise met with silence.
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On September 30, 2015, counsel for Plaintiff sent a final letter to
32.
Defendant demanding that Defendant immediately stop accepting orders for and
delivering In-N-Out food items, and to immediately cease and desist from using
Plaintiffs trademarks on its website, mobile application, advertisement and
marketing materials. Defendant failed to respond.
COUNT I
FEDERAL TRADEMARK INFRINGEMENT 15 U.S.C. 1114
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33.
Plaintiff incorporates Paragraphs 1 through 32 as though fully set forth
herein.
34.
Plaintiff exclusively owns the Registered Marks, which are valid and
enforceable.
35.
Plaintiff has used the Registered Marks in interstate commerce in
connection with the advertising and promotion of its restaurant goods and services.
36.
Without authorization, Defendant has used and continues to use the
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Registered Marks and the Imitation Logo in interstate commerce in connection with
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its restaurant delivery business.
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37.
Upon information and belief, Defendants unauthorized use of the
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Registered Marks and the Imitation Logo has caused, and will likely continue to
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cause, confusion, mistake, or deception in the relevant consumer market.
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38.
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Registered Marks and the Imitation Logo constitute Trademark Infringement in
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violation of 15 U.S.C. 1114 and 1117.
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39.
Defendant has acted in bad faith and/or willfully in using the Registered
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Marks and the Imitation Logo in connection with operation of its restaurant food
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delivery business.
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40.
Defendants infringing acts have caused and will continue to cause
Plaintiff to suffer irreparable injuries to its reputation and goodwill. Plaintiff does not
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have an adequate remedy at law to recover for this harm, and is therefore entitled to
injunctive relief.
COUNT II
FEDERAL UNFAIR COMPETITION 15 U.S.C. 1125 (a)
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41.
herein.
42.
Registered Marks in connection with its food delivery services constitutes a false
designation of origin, a false or misleading description of fact, and/or false or
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misleading representation of fact, and has caused and is likely to cause confusion,
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mistake, and/or deception as to:

a.
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The affiliation, connection or association of the Plaintiffs

trademarks with Defendant;
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b.
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The origin, sponsorship or approval of Defendants use of the

Plaintiffs trademarks; and
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c.
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The nature, characteristics, or qualities of Defendants services
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that bear and/or rendering of services in connection with the
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Plaintiffs trademarks.
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43.
The aforesaid acts constitute Federal Unfair Competition in violation of
15 U.S.C. 1125(a).
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COUNT III
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DILUTION 15 U.S.C. 1125(C)
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44.
herein.
45.
Plaintiff is the owner of the Registered Marks, which are famous marks
that are inherently distinctive.
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46.
Defendants unauthorized use of the Registered Marks and the Imitation
Logo in connection with its food delivery services is likely to cause dilution by
blurring and/or dilution by tarnishment of Plaintiffs famous marks.
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47.
Defendants acts have been willful and in conscious disregard of the
trademark rights of Plaintiff.

48.
Defendants acts were subsequent to the Registered Marks becoming
famous.
49.
Because Defendants unauthorized use of the Registered Marks and the
Imitation Logo is likely to tarnish the Plaintiffs marks, Plaintiff is entitled to
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injunctive relief under 15 U.S.C. 1125(c) because Plaintiff has no adequate remedy
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at law.
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COUNT IV
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UNFAIR COMPETITION
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CALIFORNIA BUSINESS AND PROFESSIONS CODE 17200
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50.
herein.
51.
Defendants acts, complained of above, constitute unlawful, unfair
and/or fraudulent business acts or practices.

52.
Defendants acts, complained of above, including, without limitation,
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operating in violation of the California Retail Food Code, constitute unfair
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competition, either directly and/or contributorily, in violation of California Business
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and Professions Code 17200, et seq.
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53.
As a result of the foregoing acts, Plaintiff has suffered damages.
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54.
The foregoing acts of Defendant have caused Plaintiff irreparable harm,
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and unless enjoined, will continue to cause Plaintiff irreparable harm.
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COUNT V
COMMON-LAW TRADEMARK INFRINGEMENT
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55.
herein.
56.
The acts of Defendant, complained of above, constitute trademark
infringement in violation of the common law of the State of California.

57.
Upon information and belief, Defendants acts have been committed and
are being committed with the deliberate purpose and intent of appropriating and
trading on Plaintiffs goodwill and reputation.
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58.
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damages.
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59.
As a result of the foregoing acts of Defendant, Plaintiff has suffered

The foregoing acts of Defendant have caused Plaintiff irreparable harm,
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and, unless enjoined, Defendants acts as alleged herein will continue to cause
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Plaintiff irreparable harm, loss and injury.
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WHEREFORE, Plaintiff requests judgment in its favor and against Defendant

as follows:
a.
That Defendant, its agents, servants, employees, successors,
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assigns and attorneys and any related companies, and all
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persons in active concert or participation with one or more
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of them be permanently enjoined and restrained from
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unlawfully using the Registered Marks and/or any mark that
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is confusingly similar to Plaintiffs registered marks;
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b.
That Defendant, its agents, servants, employees, successors,
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assigns and attorneys and any related companies, and all
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persons in active concert or participation with one or more
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of them be permanently enjoined and restrained from its
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unauthorized delivery of food from Defendants restaurants;
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c.
Act;
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d.
e.
An award of damages to be determined at trial, which,

pursuant to 15 U.S.C. 1117 shall be trebled; and
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An award of reasonable attorney fees, investigatory fees

and expenses, together with pre-judgment interest thereon;
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A finding that this is an exceptional case under the Lanham
f.
Any such other relief that the circumstances may require

and that the Court deems just and proper.
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Dated: November 6, 2015

RICHARD H. ZAITLEN
ROBERT WALLAN
JENNIFER SEIGLE
By
/s/ Richard H. Zaitlen

Richard H. Zaitlen
In-N-Out Burgers
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DEMAND FOR JURY TRIAL

Plaintiff hereby demands a jury trial, as provided by Rule 38 of the Federal
Rules of Civil Procedure.
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Dated: November 6, 2015

RICHARD H. ZAITLEN
ROBERT WALLAN
JENNIFER SEIGLE
By
/s/ Richard H. Zaitlen

Richard H. Zaitlen
In-N-Out Burgers
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4852-3771-5497.V7

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Case 8:15-cv-01826-JLS-JCG Document 1 Filed 11/06/15 Page 1 of 16 Page ID #:1

RICHARD H. ZAITLEN (SBN 63283)

CENTRAL DISTRICT OF CALIFORNIA

Case No. 8:15-cv-1826

Plaintiff IN-N-OUT BURGERS, a California Corporation (Plaintiff or In-

permanent injunction against Defendant DoorDash (Defendant or Door Dash).

In support of its Complaint, Plaintiff alleges as follows:

NATURE OF THE CASE

This action concerns Defendants acts of trademark infringement and

both state and federal laws.

Case 8:15-cv-01826-JLS-JCG Document 1 Filed 11/06/15 Page 2 of 16 Page ID #:2

JURISDICTION AND VENUE

reasons, venue is proper in the Central District of California pursuant to 28 U.S.C.

delivery business throughout the Central District of California, including throughout

to Plaintiffs claims occurred in this District, where Defendant advertises and

in the State of California and in this District, where Plaintiff is located.

Plaintiff is a California corporation having its principal place of business

in Irvine, California. Plaintiff operates a highly recognizable chain of restaurants,

with over 300 locations in the United States.

Upon information and belief, Defendant is a California company, having

a principle place of business at 531 Lasuen Mall, Stanford, California 94305.

Defendant provides on-demand food delivery from numerous restaurants to

customers who place orders through a mobile app or an Internet website.

Founded in 1948, Plaintiff operates a successful and popular chain of

quick service restaurants offering made-to-order hamburger sandwiches and other

Case 8:15-cv-01826-JLS-JCG Document 1 Filed 11/06/15 Page 3 of 16 Page ID #:3

and IN-N-OUT BURGER as well as logos related to these marks in interstate

commerce in connection with its advertising, promotion, offering to provide, and

providing specially-prepared burgers and other products and services to consumers in

third year in a row in the Limited-Service category in Nations Restaurant News

Plaintiff has amassed tremendous consumer goodwill over the decades.

Plaintiffs Federal Trademark and Service Mark Registrations for the

Case 8:15-cv-01826-JLS-JCG Document 1 Filed 11/06/15 Page 4 of 16 Page ID #:4

French fried potatoes, hot

Oct. 21, 1975

Restaurant services and

Jan. 20, 1976

Restaurant services and carryout restaurant services (IC 042)

Milk and French fried potatoes

Cheeseburgers, hamburgers, hot

Nov. 29, 1988

Shirts (IC 025)

Dec. 13, 1988

Restaurant services and carryout restaurant services (IC 042);

Case 8:15-cv-01826-JLS-JCG Document 1 Filed 11/06/15 Page 5 of 16 Page ID #:5

IN-N-OUT and Design

Jan. 31, 1989

Restaurant services and carryout restaurant services (IC 042);

IN-N-OUT and Design

Feb. 21, 1989

Restaurant services and carryout restaurant services (IC 042);

Restaurant services and carryout restaurant services (IC 042);

Case 8:15-cv-01826-JLS-JCG Document 1 Filed 11/06/15 Page 6 of 16 Page ID #:6

Restaurant services and carryout restaurant services (IC 042);