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The U.S. Supreme Court on Monday declined to review a Seventh Circuit ruling that Grubhub Inc.'s fork-and-knife logo does not infringe on a similar emblem used by Kroger's meal-kit delivery service, Home Chef.

Kroger Logo Copyright Lawsuit : Background of the Case

Kroger Co. petitioned the justices in January, arguing that the appeals court wrongly upheld an Illinois district court ruling. Kroger contended that the lower court did not analyze all seven likelihood of confusion factors required by the Seventh Circuit in trademark infringement cases. Kroger further argued that the appeals court broke its own precedent by not reviewing the lower court's conclusion for clear error.

Grubhub initiated the lawsuit against Kroger and Relish Labs LLC, which operates as Home Chef, in 2021. This legal action followed a cease-and-desist letter from Kroger, which claimed that Grubhub's fork-and-knife logo, superimposed over an orange house, infringed on Home Chef's trademark. In response, Kroger and Home Chef sought a preliminary injunction.

Kroger Logo Copyright Lawsuit : Court Decisions

A magistrate judge recommended granting the preliminary injunction after analyzing the circuit's seven likelihood of confusion factors. The district court adopted these factual findings but denied the preliminary injunction, having analyzed only three of the seven factors: similarity of the marks, intent, and actual confusion. The court stated that analyzing the other four factors would not alter its conclusion that Grubhub had a likelihood of success on the merits—a conclusion upheld by the Seventh Circuit in September.

In its petition to the justices, Kroger highlighted a split among the appeal courts. Kroger noted that the Second and Federal Circuits review each factor and the ultimate finding for likelihood of confusion from the beginning, while the Sixth Circuit reviews each factor from scratch under the clearly erroneous standard, except for the ultimate finding. The Fourth, Seventh, and Ninth Circuits hold that the analysis of each factor and the ultimate finding are questions of fact reviewed under a clearly erroneous standard.

Reactions and Statements

Grubhub, in its brief opposing Kroger's petition, argued that the district court and court of appeals did consider all the likelihood of confusion factors and claimed there is no circuit split as Kroger contends.

"Absent clear error, appellate courts across the country uniformly defer to a district court's factual findings on the question of likelihood of confusion, and on the appropriateness of denying a motion for a preliminary injunction," Grubhub's brief stated. "That is precisely what the Seventh Circuit did here when it declined to disturb the district court's denial of Home Chef's motion for a preliminary injunction."