Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW HAMPSHIRE
`
`GREAT NEW HAMPSHIRE
`RESTAURANTS, INC.,
`
`Plaintiff,
`
`Case No.
`
`V.
`
`GRUBHUB, INC.,
`
`Defendant.
`
`COMPLAINT
`
`The plaintiff Great New Hampshire Restaurants, LLC ("Plaintiff' or "GNHR"), by its
`
`undersigned attorneys Rath, Young, and Pignatelli P.C., for its complaint against the defendant
`
`GrubHub, Inc. ("GrubHub" or '"Defendant") alleges as follows:
`
`NATURE OF CASE
`
`1.
`
`This is an action of willful trademark infringement, unfair competition, injury to
`
`business reputation, and false and deceptive business practices, all in violation of the laws of the
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`United States and the state of New Hampshire. Plaintiff seeks a permanent injunction, damages,
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`including the profits of GrubHub, trebled under the law, punitive damages, and related relief as
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`more fully described herein.
`
`THE PARTIES
`
`2.
`
`Plaintiff is a limited liability company operating under the laws of New
`
`Hampshire having its principal place of 12 Aspen Lane, Bedford, New Hampshire 03031.
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`3.
`
`Upon information and belief, GrubHub is a California company with a principle
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`place of business at 111 W. Washington Street, Suite 2100, Chicago, Illinois 60602.
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`1
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW HAMPSHIRE
`
`GREAT NEW HAMPSHIRE
`RESTAURANTS, INC.,
`
`Plaintiff,
`
`Case No.
`
`V.
`
`GRUBHUB, INC.,
`
`Defendant.
`
`COMPLAINT
`
`The plaintiff Great New Hampshire Restaurants, LLC ("Plaintiff' or "GNHR"), by its
`
`undersigned attorneys Rath, Young, and Pignatelli P.C., for its complaint against the defendant
`
`GrubHub, Inc. ("GrubHub" or '"Defendant") alleges as follows:
`
`NATURE OF CASE
`
`1.
`
`This is an action of willful trademark infringement, unfair competition, injury to
`
`business reputation, and false and deceptive business practices, all in violation of the laws of the
`
`United States and the state of New Hampshire. Plaintiff seeks a permanent injunction, damages,
`
`including the profits of GrubHub, trebled under the law, punitive damages, and related relief as
`
`more fully described herein.
`
`THE PARTIES
`
`2.
`
`Plaintiff is a limited liability company operating under the laws of New
`
`Hampshire having its principal place of 12 Aspen Lane, Bedford, New Hampshire 03031.
`
`3.
`
`Upon information and belief, GrubHub is a California company with a principle
`
`place of business at 111 W. Washington Street, Suite 2100, Chicago, Illinois 60602.
`
`1
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`Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 2 of 11
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction under section 39 of the Lanham Act, 15
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`U.S.C. § 1121, sections 1332(a), 1338(a) and 1338(b) of the Judicial Code, 28 U.S.C. § 1338(a)
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`and§ 1338(b). This Court has subject matter jurisdiction over the non-federal claims asserted
`
`herein pursuant to section 1367 of the Judicial Code, 28 U.S.C. § 1367(a), which provides
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`supplemental jurisdiction.
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`5.
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`Personal jurisdiction over GrubHub is proper because GrubHub is conducting
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`business in this judicial district and committing torts in this state, including without limitation
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`GrubHub's trademark infringement, unfair competition, and deceptive trade practices, which
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`cause harm in this state and in this judicial district.
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`6.
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`Venue properly lies in the judicial district under sections 13 91 (b) and ( c) of the
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`Judicial Code, 28 U.S.C. § 1391(b) and (d), because a substantial portion of the events at issue
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`have arisen and/or will arise in this judicial district and because this Court has personal
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`jurisdiction over GrubHub. In a trademark infringement lawsuit, a substantial part of the evehts
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`giving rise to the claim occurs in any district in which consumers are likely to be confused by the
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`infringing goods er services, whether that occurs in one district or many districts.
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`FACTS COMMON TO ALL CLAIMS FOR RELIEF
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`A.
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`Plaintiff's Business and Trademarks
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`7.
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`GNHR operates a number of popular restaurants in New Hampshire under the
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`following trademarks: COPPER DOOR®, CHEF NICOLE'S® (the "Registered GNHR
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`Marks"), CJ'S™, T-BONES™, and CACTUS JACK'S™ (the "Unregistered GNHR Marks" and
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`together with the Registered GNHR Marks, collectively, the "GNHR Marks").
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`8.
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`GNHR has been using the GNHR Marks continuously for many years in
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`2
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`Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 3 of 11
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`connection with restaurant services and has invested considerable time, money and other
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`resources in connection with the sale and advertising of its restaurant services in connection with
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`the GNHR Marks.
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`9.
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`The GNHR Marks each serve as unique signifiers of the quality, reputation and
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`goodwill of GNHR in the marketplace.
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`10.
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`Plaintiff uses its GNHR Marks by displaying them on menus, signage,
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`promotional materials, advertising materials, and websites.
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`11.
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`Over the years, Plaintiff has invested millions of dollars in the promotion and
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`advertising of products and services sold under the GNHR Marks in New Hampshire and its
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`surrounding states to create a strong association between Plaintiff's products and services and the
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`GNHRMarks.
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`12.
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`The care and skill exercised by Plaintiff in conducting its business has resulted in
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`the high quality of the products and services offered under its GNHR Marks.
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`13.
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`As a result of the extensive advertising, sale and promotion of Plaintiff's products
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`and services, its GNHR Marks have acquired secondary meaning throughout the area whereby
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`the GNHR Marks are widely recognized by the general consuming public in New Hampshire and
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`its surrounding states as a signifying Plaintiff as the unique source of the goods and services sold
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`in connection with the GNHR Marks.
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`14.
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`The GNHR Marks are strong and warrant broad protection in both related and
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`unrelated product and/or service classes.
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`3
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`Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 4 of 11
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`B.
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`GrubHub's Infringing Conduct
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`15.
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`Upon information and belief, GrubHub is a food delivery business that promises
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`its customers fast delivery from restaurants located throughout New Hampshire and surrounding
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`states, including GNHR restaurants.
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`16.
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`GNHR is in no way affiliated with GrubHub but, upon information and belief,
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`GrubHub causes customers to falsely believe that GrubHub has a relationship with GNHR
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`because certain GNHR menus and Marks appear on GrubHub's website and app, most recently
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`COPPER DOOR and T-BONES menus and Marks but, upon information and belief, other
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`GNHR Marks as well.
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`17.
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`GrubHub implies that restaurants listed on its website are "partner restaurants" by
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`stating "Partner with us" with a "For Restaurants" link provided below. Upon information and
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`belief, consumers assume that restaurants available on the GrubHub website or app are "partner
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`restaurants."
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`18.
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`Upon information and belief, GNHR customers see GNHR Marks and menus at
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`the GrubHub website or app that they want to order and they then provide a debit or credit card
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`to GrubHub for payment of GNHR goods and services.
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`19.
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`Upon information and belief, customers pay GrubHub directly for certain GNHR
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`products and services whereupon GrubHub then orders those products and services from GNHR
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`and pays GNHR when its delivery drivers pick up the food for delivery to GNHR customers.
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`However, the GNHR menus provided by GrugHub to not always match the menus in use by
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`GNHR.
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`20.
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`GrubHub's use of GNHR Marks has and is likely to continue to confuse and
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`mislead consumers into believing that GrubHub's services are sponsored by, licensed from or
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`4
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`Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 5 of 11
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`otherwise affiliated with GNHR and GrubHub's products and services adhere to the high
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`standards expected from GNHR.
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`21.
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`Upon information and belief, GrubHub's products and services do not adhere to
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`the high standards expected of GNHR products and services.
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`22.
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`Upon information and belief, GrubHub's delivery personnel do not use vehicles
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`designed for the transportation of cooked food, putting GNHR at risk for claims by customers
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`relating to the quality of its food products.
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`23.
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`GNHR cannot control how GrubHub cares for its food products during the
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`delivery process by GrubHub. GNHR has no control over GrubHub, including the time and
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`manner its deliveries or whether GrubHub regularly complies with the applicable health and
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`sanitary codes.
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`24.
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`GrubHub places GNHR at risk for customer complaints, which would
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`substantially damage GNHR's business reputation, and would result in irreparable damages and
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`financial loss.
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`25.
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`Indeed, staff at GNHR's CJ'S™ restaurant and its T-BONES™ restaurant
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`received customer complaints regarding GrubHub services under the mistaken belief that GNHR
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`is responsible for the poor service provided by GrubHub.
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`26.
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`Accordingly, GNHR has on more than one occasion asked GrubHub to remove
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`GNHR restaurants from GrubHub's offerings.
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`27. While representatives at GrubHub represented that GrubHub would cease
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`advertising on its website that it delivered from GNHR restaurants, GNHR later found continued
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`use of certain GNHR Marks on GrubHub's website, namely T-BONES™ and COPPER
`
`DOOR®.
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`5
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`Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 6 of 11
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`28.
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`Upon information and belief, GrubHub's use of these GNHR Marks is
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`intentionally and willfully meant to confuse and mislead consumers as to GrubHub's affiliation
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`with GNHR restaurants.
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`COUNTI
`FEDERAL TRADEMARK INFRINGEMENT
`(violation of 15 U.S.C. §1114)
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`29.
`
`GNHR incorporates the above paragraphs of the complaint as if separately set
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`forth herein.
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`30.
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`The Registered GNHR Marks, including the registered COPPER DOOR® mark,
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`are registered with the United States Patent and Trademark Office and are valid and enforceable
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`trademarks exclusively owned and continuously used by GNHR.
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`31.
`
`Long after GNHR's first use of the Registered GNHR Marks, including the
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`registered COPPER DOOR® mark, GrubHub began use of the Registered GNHR Marks,
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`including its current use of the registered COPPER DOOR® mark, in connection with the
`
`advertising and promotion of GrubHub' s restaurant services.
`
`32.
`
`GNHR did not authorize GrubHub to use the Registered GNHR Marks, including
`
`the registered COPPER DOOR® Mark, in connection with the advertising and promotion of
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`GrubHub's restaurant services.
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`33.
`
`Upon information and belief, GrubHub's unauthorized use of the Registered
`
`GNHR Marks, including its current use of the registered COPPER DOOR® mark, will likely
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`cause confusion, mistake, or deception in the relevant consumer market unless GrubHub is
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`permanently enjoined.
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`34.
`
`Upon information and belief, GrubHub's unauthorized use of the Registered
`
`GNHR Marks, including its current use of the COPPER DOOR® mark, constitutes trademark
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`6
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`Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 7 of 11
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`infringement is in violation of 15 U.S.C. §§ 1114 and 1117.
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`35.
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`GrubHub has willfully infringed the Registered GNHR Marks and is willfully
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`infringing the COPPER DOOR® mark in connection with restaurant services business and has
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`and is doing so in bad faith.
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`36.
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`GrubHub's infringing acts have caused and will continue to cause GNHR to
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`suffer irreparable injuries to its reputation and goodwill. Plaintiff does not have an adequate
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`remedy at law to recover for this harm and is therefore entitled to injunctive relief.
`
`COUNT II
`FEDERAL UNFAIR COMPETITION
`(violation of 15 U.S.C. §1125(a))
`
`3 7.
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`GNHR incorporates the above paragraphs of the complaint as if separately set
`
`forth herein.
`
`38.
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`Upon information and belief, GrubHub's unauthorized use of the Unregistered
`
`GNHR Marks, including the T-BONES™ and CJ'S™ 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 misleading representation of fact, and has caused and is likely to cause
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`confusion, mistake, and/or deception as to the affiliation, connection or association of GNHR
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`with GrubHub, the origin, sponsorship or approval of GrubHub's use of the Unregistered GNHR
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`Marks, including its current use of the T-BONES™ and CJ'S™ marks, and the nature,
`
`characteristics, or qualities of services offered by GrubHub.
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`39.
`
`GrubHub's conduct as alleged herein constitutes unfair competition and false
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`designation of origin in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
`
`40.
`
`GrubHub's violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) is
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`7
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`Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 8 of 11
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`willful and done in bad faith.
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`41.
`
`GNHR has no adequate remedy at law. If GrubHub is not enjoined from further
`
`use of the Unregistered GNHR Marks, including the T-BONES™ and CJ'S™ marks, GNHR
`
`will suffer substantial and irreparable injury to its business reputation and the goodwill
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`associated with the T-BONES™ and CJ'S™ marks.
`
`COUNTIII
`DECEPTIVE TRADE PRACTICES
`(violation of RSA 358-A)
`
`42.
`
`GNHR incorporates the above paragraphs of the complaint as if separately set
`
`forth herein.
`
`43.
`
`GrubHub's actions in passing off their services for GNHR's services through the
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`use of deception constitutes an unfair and deceptive trade practice as defined in RSA 358-A:2, I-
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`III, V.
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`44.
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`GrubHub's actions intentionally misinforms consumers in the New Hampshire
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`marketplace.
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`45.
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`Such actions are, in addition, sufficiently rascalous to constitute unfair and
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`deceptive acts, notwithstanding the categories in RSA 358-A:2.
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`46.
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`47.
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`GrubHub's deceptive actions are willful and knowing.
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`Pursuant to RSA 358-A:10, GNHR is entitled to injunctive relief and to the
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`amount of actual damages. GrubHub's actions under this statute were willful allowing for the
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`Plaintiff to receive up to 3 times, but not less than 2 times, the amount of actual damages and
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`recovery of costs and attorney fees.
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`8
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`Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 9 of 11
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`PRAYER FOR RELIEF
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`WHEREFORE Plaintiff prays for the following relief.
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`A.
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`For judgment that:
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`1.
`
`2.
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`GrubHub has engaged in infringement in violation of 15 U.S.C. 1114;
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`GrubHub has engaged in unfair competition in violation of 15 U.S.C.
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`1125(a); and
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`3.
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`GrubHub has engaged in deception trade practices in violation of RSA
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`358-A.
`
`B.
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`For a permanent injunction enjoining GrubHub, and any successors or assigns,
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`and its principals, officers, partners, agents, subcontractors, servants, employees, attorneys,
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`affiliates, licensees, subsidiaries and related companies or entities, and all others acting in active
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`concert or participation with it who receive actual notice of the Court's order by personal
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`service or otherwise, from:
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`1.
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`Using the GNHR Marks, or any simulation, reproduction, copy, colorable
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`imitation or confusingly similar variation of the GNHR Marks in or as
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`part of a design, logo, domain name, or trademark; using any such mark
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`in connection with the promotion, advertisement, sale, offering for sale,
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`manufacture, production, or distribution of any business, product, or
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`service; and from using any such mark on or as feature of any product;
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`2.
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`Passing off, inducing, or enabling others to pass off, sell, offer, distribute,
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`disseminate, or otherwise provide any product that bears the GNHR
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`Marks, or any mark that is a simulation, reproduction, copy, colorable
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`imitation, or confusingly similar variation thereof; and
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`9
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`Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 10 of 11
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`3.
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`Otherwise competing unfairly with GNHR in any manner.
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`C.
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`For an order that: 1) Defendant account for and pay over to GNHR the amount of
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`any profits realized by GrubHub by reason of Defendant's unlawful and willful acts as alleged
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`herein; 2) GNHR be awarded actual damages suffered by reason of GrubHub's unlawful and
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`willful acts as alleged herein, including profits realized by GrubHub, to be increased by a sum
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`equal to three times the amount thereof as provided by law; 3) GNHR be awarded interest,
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`including prejudgment interest, on all damages sums; 4) GNHR be awarded its costs and
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`reasonable attorney's fees and have such other and further relief as the Court may deem
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`equitable, including, but not limited to, any relief set forth under 15 U .S.C. § § 1116-1118; and
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`GNHR be awarded actual and punitive damages as provided for under applicable federal and
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`state law.
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`D.
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`For an order directing, the destruction of all packaging and any printed material,
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`including advertising materials and point-of-sale displays, bearing the GNHR Marks in
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`Defendant's possession or control; and publicly acknowledging the wrongful activities alleged
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`herein.
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`E.
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`For an order directing GrubHub to file with the Court and serve upon GNHR
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`within thirty (30) days after service of the injunction upon GrubHub, a report in writing and
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`under oath setting forth in detail the manner and form in which GrubHub has complied with the
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`injunction.
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`F.
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`For such other and further relief as the Court shall deem appropriate.
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`10
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`Case 1:20-cv-00284 Document 1 Filed 02/24/20 Page 11 of 11
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`JURY DEMAND
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`GNHR hereby demands a trial by jury pursuant to Rule 38 of the Federal Rules of Civil
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`Procedure.
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`Dated: February 24, 2020
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`Respectfully submitted,
`
`By: Isl R. Terry Parker
`RATH, YOUNG AND PIGNATELLI P.C.
`R. Terry Parker, Esq.
`One Capital Plaza
`Concord, New Hampshire
`Tel.: (603) 226-2600
`Email: rtp@rathlaw.com
`
`Attorneys for Plaintiff
`Great New Hampshire Restaurants, Inc.
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`11
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