Popular fast food chain In-N-Out Burger has just filed a lawsuit against a competitor over a menu item which they claim is already trademarked. According to the complaint, In-N-Out alleges that Smashburger’s new menu item—which they are calling the “Triple Double” is a little too similar to In-N-Out’s famous Double-Double and Triple Triple burgers.
And yes, the “Double-Double” is hyphenated while the “Triple Triple” is not.
Now, the real test, of course, is whether or not the Smashburger “Triple-Double” (with a hyphen) could be considered a trademark infringement on either of the two In-N-Out menu items, even though, technically, In-N-Out does not necessarily have a “Triple-Double” on their menu.
In the lawsuit, then, In-N-Out argues: “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. Since at least as early as 1966, In-N-Out has continuously used its registered Triple Triple trademark in connection with hamburger sandwiches in interstate commerce.”
It is important to understand that In-N-Out first opened its doors in 1948 as a quick-service burger stand, much like McDonald’s started out. Unlike McDonald’s, though, In-N-Out has remained focused on a smaller menu and “healthier items” and has only expanded to six states.
On the other hand, Smashburger was founded in Denver, Colorado in 2007 and operates more than 350 stores all over the world, with 36 in California alone. While In-N-Out has burgers that are similar, but not necessarily trademarked as the very same, Smashburger introduced its “Triple-Double” in July of this year. This burger is made with two beef patties and three slices of cheese. In-N-Out’s “Triple Triple” (which is also called the three by three, or 3×3) has three beef patties and three slices of cheese).
In-N-Out’s lawsuit goes on to argue that the similarity in names could “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.”
Also, In-N-Out has accused Smashburger of not only trademark infringement but also of diluting the trademark and unfair competition practices. In all, then, the company is seeking both an injunction and compensation.