In-N-Out files trademark suit against Smashburger over cheeseburger ad campaign

“In-N-Out Grub” by Laine Trees. Licensed under CC BY 2.0.

On Monday, August 30th, national fast food chain In-N-Out Burger filed a lawsuit alleging federal trademark infringement and other claims against fellow fast food chain Smashburger. The suit, filed in the Central District of California, alleges that Smashburger has recently adopted certain promotional advertising marks which infringe upon both state and federal trademarks held by In-N-Out.

In-N-Out holds a series of 10 federally registered trademarks as well as seven trademarks registered within the state of California. These include U.S. Trademark Registration No. 3572425, covering the use of the standard character mark “DOUBLE-DOUBLE” on burgers including two patties and two slices of cheese; U.S. Trademark Registration No. 1598825, covering the use of the typed drawing mark “TRIPLE TRIPLE” on hamburger sandwiches and cheeseburger sandwiches; and U.S. Trademark Registration No. 1609251, covering the use of the typeset mark “2 X 2” also on hamburgers and cheeseburgers. In-N-Out’s California state trademarks and service marks cover character marks which are essentially the same as the entity’s federal trademarks. In-N-Out’s suit alleges that the company’s use of at least some of these marks extend back to the early 1960s.

In-N-Out Burger alleges that, this July, Smashburger started a new product advertising campaign using the marks “TRIPLE DOUBLE” and “SMASHBURGER TRIPLE DOUBLE” in its chains nationwide. In-N-Out also notes that Smashburger has been using the marks on its social media accounts, such as in this Instagram post cited in In-N-Out’s suit. Although In-N-Out isn’t asserting a “TRIPLE DOUBLE” trademark in the case, it does note that customers regularly mix the “DOUBLE DOUBLE” or “TRIPLE TRIPLE” marks to ask for a “Triple Double” or a “2 x 3” burger. Smashburger has filed four intent-to-use application for the “TRIPLE DOUBLE” marks with the U.S. Patent and Trademark Office in November 2016. In-N-Out disputes Smashburger’s use of the mark, arguing that it creates a high likelihood of consumer confusion between the two chains.

In-N-Out’s suit includes seven claims for relief including claims for federal trademark infringement, federal unfair competition, federal trademark dilution as well as similar claims under state law. In-N-Out is seeking permanent enjoinder as well as preliminary and permanent injunctions against Smashburger using the “TRIPLE DOUBLE” marks in its product advertising as well as compensatory, treble and exemplary damages.


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