A Court Cannot Balance That Which It Does Not Weigh
A Court Cannot Balance That Which It Does Not Weigh

On January 9, 2024 Relish Labs LLC (Relish) and its parent corporation The Kroger Co. (Kroger) filed a Petition for a Writ of Certiorari to the U.S. Supreme Court, seeking review of the Seventh Circuit’s refusal to issue a preliminary injunction against Grub Hub’s use of the orange fork and knife logo. Grubhub Inc. v. Relish Labs LLC, 80 F.4th 835 (7th Cir. 2023). Relish Labs LLC owns the HOME CHEF logo that also utilizes a fork and knife design. See Petition here.

Kroger’s Petition asks SCOTUS to determine once and for all if the determination of a likelihood of confusion is a factual finding or a legal conclusion. Some Circuits have held the former, others the latter. And some are somewhere in between. Kroger’s second question is whether a court should disclose its analysis of all factors when discussing the likelihood of confusion balancing test for trademark infringement. To this issue, Kroger explicitly states “a court cannot balance that which it does not weigh.”

The reason these questions are important is the issue of what happens when a trademark infringement case is appealed to a higher court. Should that court review for clear error only or should it review the case de novo? Or a combination of the two?

If certiorari is granted, any answer to the questions presented here have the potential to re-shape trademark litigation across all Circuits. In the meantime, Grub Hub remains entitled to continue use of its “house mark.”



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