Waiter.com sues GoWaiter.com for trademark infringement
Tuesday, July 3rd, 2012
Does GoWaiter.com infringe Waiter.com’s mark?
Here’s an interesting lawsuit that shows the challenges of building a business on a a descriptive (aka ‘generic’) domain name.
Waiter.com, a food delivery web site started in 1995, has sued GoWaiter.com, a similar service apparently started in 2010.
Waiter.com has a trademark for “Waiter.com”, which it bases its complaint on.
The plaintiff might have a case here (pdf).
If the plaintiff’s name was FoodDelivery.com, and someone created GoFoodDelivery.com, then it would be a hard case. Food delivery merely describes the service.
But does “Waiter.com” describe the service of food delivery? Maybe at a restaurant. But if I heard there was a web site called Waiter.com, I’d probably think it was a resource site or job board for waiters.
One reason Waiter.com is clearly miffed: if you search Google for Waiter.com, its competitor comes up #2.
GoWaiter.com, it should be noted, has federal trademark registrations for GoWaiter and GoWaiter.com.
Tags: lawsuit, trademarks
So then this begs the question as to why the USPTO examiner granted GoWaiter a TM in the first place?
Didn’t the examiner do a conflict check?
Isn’t that how it works, or am I missing something here?
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I saw three live trademarks at uspto:
Waiter.com (Waiter.com, Inc, registered August 1, 2000)
GoWaiter.com (GoWaiter, Inc., registered November 23, 2010)
GoWaiter (Go Waiter, Inc., registered March 15, 2011)
I could find no TM on stand-alone “Waiter.”
But there are other marks on _____waiter.
Maybe I’m missing something, but both have TM’s on their terms, and I see no confusion between the two services.
Besides, the descriptive characteristics are just too close for comfort for those TM’s.
I think the respondent has a good chance of winning this one, that is, if the panel hasn’t been tainted.
If I were the respondent, and I list UDRP, I’d fight this one through the courts.
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In addition, this looks like a domain grab because, frankly, “GoWaiter” is MUCH better (in terms of explaining what the business actually does) than just Waiter.
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Registrability and passing off issues aside (separate concepts), GoWaiter was asking for trouble. Now they have it.
Andrew, you are right. This is a thorny matter with no obvious determination. The outcome will lie in the subtleties of the case.