The Myers Law Group
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Doubling down in the fast food world

burger and fries.jpeg

There is a trademark battle sizzling between two hamburger restaurants. On one side is In-N-Out, a long-standing and popular burger joint based in Irvine, California. On the other is the up-and-coming Smashburger company based in Denver, Colorado.

The hamburger lawsuit

This August, In-N-Out filed a lawsuit against Smashburger for trademark infringement.

In-N-Out claims it has been using the trademark phrase DoubleDouble to describe its sandwiches since 1963. In 1966, it trademarked the phrase TripleTriple. In-N-Out also holds state and national trademarks for Double-Double, Triple Triple, and Quad Quad burgers, in addition to trademarks 2 x 2 and 3 x 3.

Recently, Smashburger, which was founded in 2007, as been marketing a sandwich featuring two hamburger patties and three cheese slices - thus the name Triple Double.

In-N-Out's position is that Smashburger's use of the phrase Triple Double will cause confusion in the marketplace, and that people will assume there is a connection between the two companies' products.

Protecting their property

In-N-Out claims that Smashburger is infringing on and weakening In-N-Out's intellectual property. In-N-Out accuses the Smashburger burger of resembling its burger in appearance, taste and smell.

The company has filed suit against other restaurants when they felt In-N-Out's trademarks - the design of the restaurants, the uniforms worn by employees, the logos that appear in their ads - appeared to be infringed upon.

The court may decide that the idea of a multiple patty, multiple cheese-slice hamburger is not itself trademarkable. Countless restaurants are selling some variation on this theme - including top chains Burger King, Wendy's and McDonald's.

Is anyone confused?

It is hard to know if consumers are likely to be bewildered by the similar adjectives in the hamburger names. But, if either company has rightful claim to the concept of double triple, the advantage may go to In-N-Out, which has aggressively protected its products identities for more than 50 years.

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