Battle of the Burgers; In-N-Out Sues Smashburger for Trademark Infringement

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In-N-Out -- Image via YouTube

Popular West Coast fast food burger chain In-N-Out Burger filed a trademark infringement lawsuit against rival chain Smashburger. In-N-Out’s lawsuit claims that Smashburger’s “Triple Double” sandwich is too similar to their “Double Double” burger, according to the Orange County Register.

In-N-Out believes Smashburger used the name “Triple Double” likely “to confuse and mislead the consuming public, and injure In-N-Out, by causing consumers to believe incorrectly that Smashburger’s products originate from or are authorized by In-N-Out.”

Denver-based Smashburger introduced their Triple Double sandwich earlier this summer. It features two burger patties, and three slices of cheese situated between two toasted and buttered sponge-dough buns.

Similarly, In-N-Out’s Double Double features two slices of cheese and two beef patties situated between two sponge-dough buns. However, In-N-Out has been around for decades and Smashburger just opened its first location in 2007.

“Since at least as early as 1963, In-N-Out has continuously used its registered Double-Double trademark in connection with hamburger sandwiches in interstate commerce,” the lawsuit said, according to the Register. “Since at least as early as 1966, In-N-Out has continuously used its registered Double Double trademark in connection with hamburger sandwiches in interstate commerce.”

Although, Smashburger is not going down without a fight. Their co-founder Tom Ryan told the Register that their burger “is not comparable to any In-N-Out menu offering” but they are flattered with the comparison.

“Frankly, we are flattered by the attention In-N-Out has given our Smashburger Triple Double. To date, Smashburger’s Triple Double is posting double-digit traffic and sales increases for the 10-year-old Smashburger brand,” he said.

Even though the famed home of the double-double is the more established burger chain it looks like they’ll have their work cut out for them. They will have to prove they have a valid trademark and that their trademark was infringed upon.

Who’s Your Lawyer?  

It appears that the family-owned burger chain is well “lawyered up.”  According to our research, In-N-Out has four live trademarks for the mark “Double Double”:

  1. The first one covers sandwiches:
  2. The second one broadly covers meals with meat, vegetables, bread, and cheese
Via USPTO

3.  The third one broadly covers children’s apparel with the mark

Via USPTO

4.  And the fourth one covers the British Spelling Doble Doble:

Via USPTO

What is trademark infringement?

Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.

What happens when a trademark is infringed upon?

1. A court order (injunction) that the defendant stop using the accused mark

2. An order requiring the destruction or forfeiture of infringing articles

3. Monetary relief, including defendant’s profits, any damages sustained by the plaintiff, and the costs of the action; and

4. An order that the defendant, in certain cases, pay the plaintiffs’ attorneys’ fees.

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