On Wednesday in the Central District of California, restaurant Lucky Boy Hamburgers filed a first amended complaint against food delivery service Postmates in response to new developments since the original complaint was filed.
The filing noted that Lucky Boy Hamburgers has two registered trademarks for Lucky Boy “for use in connection with restaurant services with a first use in commerce date of May 30, 1960” as well as a California trademark for Lucky Boy since 1983. Lucky Boy argued that these Lucky Boy marks when used in connection with its goods and services indicate to the public that these “originate with, or are provided by, Lucky Boy.” Reportedly, because the plaintiff “adheres to strict quality standards,” the public associates Lucky Boy and its mark with this level of quality. As a result, Luck Boy claimed that it “has attained considerable value and the goodwill associated with it represents a valuable business asset.”
The plaintiff argued that “(n)ot all restaurants want to be associated or affiliated with third party food delivery services” such as the plaintiff’s, citing a high 30% fee and the fact that the defendant only pays restaurants monthly. However, “Postmates operated its business to penalize Lucky Boy for not signing up by intentionally diverting business from Lucky Boy.”
In particular, Postmates purportedly used the Lucky Boy mark on its online platform, despite not being authorized to do so. The plaintiff claimed that before the lawsuit, if a consumer typed “Lucky Boy” into Postmates’ search bar on its platform, the restaurant would appear as closed, when the restaurant was not closed, however, this “diverts customers to other restaurants because they falsely believe Luck Boy is closed.”
Lucky Boy claimed that it contacted Postmates and requested the removal of all references to Luck Boy as well as a cease and desist for its trademark, but Postmates has allegedly not provided the plaintiff with a response.
The original complaint was filed in February; the amended complaint added more details and updated the complaint with new developments since the suit was filed. Specifically, the amended complaint included that Postmates did not comply with the plaintiff’s request for its mentions to be removed until after the suit was filed, among other new added details. Additionally, Lucky Boy added that Postmates is likely to continue this behavior in the future unless enjoined.
The claims for relief include trademark infringement, false designation of origin, infringement under California state law, common law trademark infringement, unfair competition, common law unfair competition, and intentional interference with prospective economic advantage.
Lucky Boy seeks to permanently enjoin Postmates from a variety of activities including further infringement. Lucky Boy also seeks a monetary award; an award for damages, costs and fees; pre- and post-judgment interest; and other relief.
Lucky Boy Hamburgers is represented by Cislo & Thomas LLP.
