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In-N-Out suing Smashburger's imitation of the Double Double, the Triple Double

N

norm9

Member
http://www.ocregister.com/2017/08/28/in-n-out-sues-smashburger-over-alleged-triple-double-burger-trademark-infringement/

Irvine-based In-N-Out Burger filed a trademark infringement lawsuit Monday, Aug. 28 against Denver-based Smashburger, claiming the fast food rival’s “Smashburger Triple Double” is too similar to its famed “Double Double” burger.

“Smashburger’s use of the Triple Double and Smashburger Triple Double marks is 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,” the lawsuit states.
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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,” the lawsuit stated.
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Smashburger was founded in Denver in 2007. The chain has grown quickly, entering Orange County in 2012. It has three locations in Orange County. The better burger concept is known for using gourmet toppings such as goat cheese, truffle mayonnaise and mini portabella mushrooms.

Smashburger, like In-N-Out, also uses toasted and lightly buttered sponge-dough buns.

Launched in mid-July, Smashburger’s Triple Double features two burger patties and three slices of cheese.

“This will be Smashburger’s new iconic menu item, providing three times the cheese and double the beef in every bite,” chain co-founder Tom Ryan said in a statement this summer.

Smashburger could not be reached for comment late Monday.
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Smash if old.

triple_double.jpg
 
N

NewFresh

Member
So they are suing because the competition used the word double and also has three slices of cheese and two patties?

At that point can't they sue anyone who layers patties and cheese more than one patty high?
 
A

Anoregon

The flight plan I just filed with the agency list me, my men, Dr. Pavel here. But only one of you!
I had a triple double yesterday actually. It was delicious.
 
N

norm9

Member
EmmanuelMunoz said:
So they are suing because the competition used the word double and also has three slices of cheese and two patties?

At that point can't they sue anyone who layers patties and cheese more than one patty high?
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Well, In N Out has Double Double and Triple Triple trademarked. Calling your burger the triple double seems like cheating.
 
SDCowboy

SDCowboy

Member
I want Smash Burger so bad right now. It's fucking great.

And coincidentally, I had In N Out for lunch today. lol
 
S

starchild excalibur

Member
EmmanuelMunoz said:
So they are suing because the competition used the word double and also has three slices of cheese and two patties?

At that point can't they sue anyone who layers patties and cheese more than one patty high?
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Intheflorsh said:
It's a burger with extra patties and cheese, not exactly a novel idea.
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I think - especially in SoCal - it's fair to argue that "triple double" sounds like something In N Out would offer and that Smash Burger may be trying to capitalize on the naming. It's not about the number of patties or slices of cheese, but the naming schematic.

Given that Smashburger doesn't use the "single"/"double"/"triple" on any of their other burgers, I think it's fair on In-N-Out's part to argue that they're trying to ape their naming.

It'd be like Wendy's calling a chicken sandwich their "McSandwich" and ignoring how that would be aping McDonald's and their naming schema (McDouble, McChicken, etc).
 
G

gamz

Member
The mushroom cheeseburger at Smash is delicious.

This lawsuit is absurd.

It's like McDonald's suing BK for that copycat Bigmac or anyone else.
 
I

Intheflorsh

Banned
starchild excalibur said:
I think - especially in SoCal - it's fair to argue that "triple double" sounds like something In N Out would offer and that Smash Burger may be trying to capitalize on the naming. It's not about the number of patties or slices of cheese, but the naming schematic.

Given that Smashburger doesn't use the "single"/"double"/"triple" on any of their other burgers, I think it's fair on In-N-Out's part to argue that they're trying to ape their naming.
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When I hear "double" in relation to burgers I think of the McDouble. Maybe McDonald's should be suing In-N-Out.
 
P

Phobophile

A scientist and gentleman in the manner of Batman.
I'm not a lawyer, but I'd say there's validity to this. Double Double is a registered trademark and the name Triple Double is pretty damn close IMO considering the competitor's product is a nearly identical double cheeseburger. Hell. Two Brothers Brewing in Illinois sent a cease and desist (granted, not a lawsuit) to Three Brothers in Virginia, resulting in Three Brothers' name change to Brothers Craft Brewing.
 
S

starchild excalibur

Member
Intheflorsh said:
When I hear "double" in relation to burgers I think of the McDouble. Maybe McDonald's should be suing In-N-Out.
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It's not that it has "double" in their name - after all a "double cheeseburger" isn't some sacred name. But the argument that with In-N-Out's double-double burger and triple-triple burger being signature to their brand, it would only be logical that people may think of a triple-double as being within their branding family.

Your "McDouble" argument doesn't really work because the iconic thing about its name is the "Mc", not the "double". Again, it'd be like Wendy's calling a sandwich of theirs the "McSandwich" or "McPatty" and you saying, "You're telling me that they can't even use 'patty' without McDonald's getting mad?!"
 
N

norm9

Member
Phobophile said:
I'm not a lawyer, but I'd say there's validity to this. Double Double is a registered trademark and the name Triple Double is pretty damn close IMO considering the competitor's product is a nearly identical double cheeseburger. Hell. Two Brothers Brewing in Illinois sent a cease and desist (granted, not a lawsuit) to Three Brothers in Virginia, resulting in Three Brothers' name change to Brothers Craft Brewing.
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Three Brothers sounds waaaay better than the less familial Brothers Craft Brewing. Too bad for them.
 
T

Tagyhag

Member
norm9 said:
Well, In N Out has Double Double and Triple Triple trademarked. Calling your burger the triple double seems like cheating.
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Yep.

It'd be like if Jack in the Box had a new burger called "The Bigger Mac"

The reasoning is dumb, people are stupid but no one is stupid enough to think they're going to get In-N-Out food at a Smashburger. But the legality makes total sense.
 
I

Intheflorsh

Banned
starchild excalibur said:
It's not that it has "double" in their name - after all a "double cheeseburger" isn't some sacred name. But the argument that with In-N-Out's double-double burger and triple-triple burger being signature to their brand, it would only be logical that people may think of a triple-double as being within their branding family.

Your "McDouble" argument doesn't really work because the iconic thing about its name is the "Mc", not the "double". Again, it'd be like Wendy's calling a sandwich of theirs the "McSandwich" or "McPatty" and you saying, "You're telling me that they can't even use 'patty' without McDonald's getting mad?!"
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Except "double" is a generic word and "Mc" is clearly identifiable as a part of the McDonald's brand. Maybe In-N-Out should have used something more unique as branding instead of smashing together two words people have used to describe burgers for decades.

The bottom line is no one is going to walk into a Smashburger and think they're ordering something from In-N-Out, there's no reasonable justification for this lawsuit outside of petty corporate slap fighting.
 
V

VariantX

Member
I wonder if this is one of the precursors to the franchise wars.

I await the rise of our eventual Taco Bell overlords.
 
N

norm9

Member
A list of their trademarks.

Trademark Ownership
The following trademarks used are owned by In-N-Out Burgers, and all rights are hereby reserved:

IN-N-OUT BURGER, Rectangle and Arrow Design, DOUBLE-DOUBLE, DOUBLE DOUBLE, IN-N-OUT BURGERS and Design Arrow, IN-N-OUT, THAT'S WHAT A HAMBURGER'S ALL ABOUT, CLEANLINESS YOU CAN SEE, PALM TREE & OCEAN DESIGN, IN-N-OUT BURGER over arrow Design, PROTEIN, ANIMAL, 2X2, TWO BY TWO, TRIPLE TRIPLE, 3X3, THREE BY THREE, FOUR BY FOUR, 4X4, QUAD-QUAD, FIVE-BY-FIVE, 5X5, ENTRE-Y-SALGA, DOBLE-DOBLE, FRESH! EVERY STEP OF THE WAY, BTV, BURGER TELEVISION, ENTRADA-Y-SALIDA, HAMBURGUESAS DE ENTRADA-Y-SALIDA, Palm Tree Logo Design, IN-N-OUT BURGERS with "Building over Arrow" Design, Arrow in Box Design, INO, QUALITY YOU CAN TASTE, FRESHNESS YOU CAN TASTE, in-n-out, in-n-outburger, THE BEST ENTERPRISE IS A FREE ENTERPRISE, IN-N-OUT BURGER and Design, IN-N-OUT over Arrow Design.
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S

starchild excalibur

Member
Intheflorsh said:
Except "double" is a generic word and "Mc" is clearly identifiable as a part of the McDonald's brand.
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In-N-Out isn't arguing that "double" is a word owned by them. They're arguing that Smashburger is using their naming schema to draw comparisons to their burger at best and mislead buyers at worst. In-N-Out's burgers use a numerical-numerical (i.e. double double/triple triple/quadruple quadruple) naming schema that - to the best of my knowledge - no other fast food burger chain does. I'm not sure they'll win this argument, but they clearly have a point that goes beyond "don't use 'double' in your name".

Just like if my last name was "McBride" and I wanted to start up a restaurant and rightfully name my sandwich the "McPoultry," you can bet your ass McDonald's would argue against it despite them not owning all "Mc"-prefixed last names in existence.

The bottom line is no one is going to walk into a Smashburger and think they're ordering something from In-N-Out, there's no reasonable justification for this lawsuit outside of petty corporate slap fighting.
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That's fair enough, but corporations are duty bound to fight against perceived violations. Smashburger isn't some poor, naive orphan of the burger world. They knew this would happen and they're relishing it.
 
H

Hesh

Member
SeroTyler said:
I'm surprised Gamestop hasn't sued them first for that logo.
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No joke, I remember years ago someone asking me about GameStop getting into the fast food business because they thought GameStop owned Smashburger (because of their logo).
 
Z

ZealousD

Makes world leading predictions like "The sun will rise tomorrow"
starchild excalibur said:
In-N-Out isn't arguing that "double" is a word owned by them. They're arguing that Smashburger is using their naming schema to draw comparisons to their burger at best and mislead buyers at worst. In-N-Out's burgers use a numerical-numerical (i.e. double double/triple triple/quadruple quadruple) naming schema that - to the best of my knowledge - no other fast food burger chain does. I'm not sure they'll win this argument, but they clearly have a point that goes beyond "don't use 'double' in your name".

Just like if my last name was "McBride" and I wanted to start up a restaurant and rightfully name my sandwich the "McPoultry," you can bet your ass McDonald's would argue against it despite them not owning all "Mc"-prefixed last names in existence.
Click to expand...

Yeah. I think "double" and "triple" on their own would be considered descriptive and would escape any claims of trademark infringement. They aren't suing every chain that claims to have a double cheeseburger. But the redundant naming scheme is unique to In N Out.

I know there's lots of trademark abuse out there, but this actually looks like In N Out has a legitimate case here. Not saying this as some kind of In N Out defense force, btw. I've never had an In N Out burger in my whole life.
 
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