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."

Counsel for Kroger expressed disappointment at the Supreme Court's decision not to grant the company's petition. "We take this opportunity, however, to wish future litigants well in their quest to protect their marks, no matter which likelihood of confusion factors are chosen to be applied by the courts," said William P. Atkins of Pillsbury Winthrop Shaw Pittman LLP. "We will now move forward with the litigation against Grubhub and its parent company, in the Northern District of Illinois."

Meanwhile, counsel for Grubhub applauded the justices' decision to deny certiorari. "We're pleased with this denial of certiorari so we can finally move forward with this case and obtain a court order dismissing it once and for all," said David H. Bernstein of Debevoise & Plimpton LLP. "In the years since Grubhub adopted its parent company's logo, and despite hundreds of millions of deliveries and consumer interactions, Grubhub has seen no evidence of confusion, which is hardly surprising. Grubhub looks forward to continuing to serve its customers nationwide with its distinct and unique logo."

Looking Ahead

Kroger is represented by William P. Atkins of Pillsbury Winthrop Shaw Pittman LLP, while Grubhub is represented by David H. Bernstein of Debevoise & Plimpton LLP and Isaac Colunga of Ice Miller LLP. As the case continues in the Northern District of Illinois, both parties are preparing for the next stages of litigation in the Kroger logo copyright lawsuit.