In-N-Out Burger Continues Suing Australian Burger Slingers Despite Having No Presence In The Country Other Than Popups

from the down-n-out dept

For this post, we’re going to need to provide some context when it comes to In-N-Out’s fraught relationship with the entire country of Australia. The famous burger chain based here in America has made a habit of suing Australian entities that sell burgers using the same or similar names over trademark rights. If you’re not familiar with the history here, that may not strike you as particularly noteworthy, especially given that some of the sued entities in question very much do use names and branding that serve as at least an homage to In-N-Out. The problem here is that In-N-Out has basically no presence in Australia. The company has no storefronts or brick and mortar businesses in Australia. As in… at all. Instead, the company has made a habit of doing pop-up restaurants in the country once every three years or so. Why? Well, because of a provision in Australian trademark law that allows this to satisfy the use-it-or-lose-it nature of trademark protection.

In other words: In-N-Out has no real presence in Australia, has never shown any indication of having a real presence in Australia, and simply uses these once-in-a-while pop-up locations solely to keep its trademark registrations active.

This has continued to the present, where In-N-Out is yet again suing another entity for violating the trademarks it’s just barely using in Australia.

US burger giant In-N-Out has accused an Australian business of engaging in misleading or deceptive conduct and trademark infringement by selling burgers and fries on three delivery services as “In & Out Aussie Burgers”.

The burger chain is suing Rich Asians Pty Ltd and businessman Puneet Ahori in the Federal Court, alleging the operator passed itself off as In-N-Out when it sold food on Uber Eats, DoorDash and Menulog in at least four locations in Queensland.

Let’s get one thing out of the way as a matter of throat-clearing: Rich Asians Pty Ltd was absolutely using deceptively similar trade dress and name to In-N-Out. After a cease and desist was sent, the company put new branding in place, changing the logo so as not to be so obvious.

On Wednesday, barrister Megan Evetts – appearing for the American burger chain – said the Australian restaurants initially used the name “In-N-Out Aussie Burgers”, but when a cease and desist letter was sent the first part of the name was changed to “In & Out”.

She said the delivery listings previously used an “exact copy” of the American In-N-Out logo, and that had now been changed to a logo which still includes an arrow.

Which gets us to the present, where the logos are fairly different — arrow use not withstanding — the offering name of “In & Out Aussie Burgers” is somewhat different, and In-N-Out is claiming that the confusion with the public is resulting in “negative reviews” which is effecting the American burger chain.

Which, again, is the entire problem. In-N-Out does not have any actual Australian presence. Much to the annoyance of Australians, it seems, given that there appears to be a healthy appetite for the chain’s offerings in the country, such that these so-called knockoffs are selling burgers. So, it’s not that In & Out Aussie Burgers isn’t clearly looking to trade off of the fame of In-N-Out, because it absolutely is doing that. The question is why In-N-Out should have any say in the matter given the way it is perverting the trademark laws of Australia just to keep its marks in a marketplace it has no real intention of serving.

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Companies: in-n-out, rich asians pty ltd

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Comments on “In-N-Out Burger Continues Suing Australian Burger Slingers Despite Having No Presence In The Country Other Than Popups”

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21 Comments
That Anonymous Cowardsays:

"confusion with the public is resulting in "negative reviews" which is effecting the American burger chain"

And how many of those negative responses are from people pissed off that the chain refuses to open stores in their country?

How many burgers are they failing to sell in the country they have no physical locations in except every 3 years?

A million Aussies calling you cunt shouldn’t affect your sales in other nations & to pretend that it does makes one question if the lawyers believe the Judges are mentally deficient.

The cicada business model of popping the hell up every 3 years to hold into a trademark shouldn’t have worked past the 1st time, but this is IP and IP means being stupid.

Its lovely to let companies hold onto IP, but at some point they need to actually use it or just lose it. Imagine how many trademarks might be freed up or patents (that never should have been issued or allowed to be that stupidly broad) would have ended long before some lawyer in east texas figured out how a patent on folding a piece of paper means that every business in the country owes them billions.

That Anonymous Cowardsays:

Re: Re: Perhaps they do intend to one day open "for real" in Austral

They have no intentions of opening a real store in any of the multiple countries where they are doing this.

They do a pop-up for about 4 hours every 3 years to show they are using it, and then spend the rest of the time suing anyone who uses anything related to the name of a company that is not actually doing business in any of these countries.

If a business can’t open a single brick and mortar store in 3 fscking years, one should ask why they get to keep holding onto the IP that someone else might want to use for a business that actually exists in the country.

Anonymoussays:

Re: Re: Perhaps they do intend to one day open "for real" in Austral

Explain to a non-trademark lawyer what would happen if In N Out did want to eventually open in Australia. Could they potentially be required to choose a new name because someone else had claimed the In-N-Out name and logo in AUS prior to their entrance into the market? Is that why Burger King is called Hungry Jack’s in Australia?

David Gsays:

Re: Re: Re: Re: Perhaps they do intend to one day open "for real" in Aus

I believe that the way the law plays out is that they would be forced into a choice: 1) Pick a different name for their stores, or 2) License their name from the company that claimed the name on Australian soil first or 3) Completely buy out the company that claimed the name on Australian soil first. The last two options have two problems: 1) What if the company that that claims the name on Australian soil first actually sucks? The new venture into Australia would start at a disadvantage because of poor reputation. 2) The price could be exorbitant. "You want the name In-N-Out? Five Million Dollars!" Compare the cost of setting up the pop up restaurant for a few hours every few years to the potential cost of buying a license (or buying out the whole chain) and the pop-up restaurant is an obvious choice.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Perhaps they do intend to one day open "for real" in

Ya I feel there are valid reasons a company could do this kind of trademark protection. I don’t think it’s an inherently objectionable practice just because they don’t have operations in the country yet, unlike the author seems to. But there are certainly factors that could make it unreasonable.

With In-N-Out specifically they’re very focused on their supply chain. They’ve confined their restaurants to a smaller area that allows them to supply stores the way they see fit. There isn’t even an In-N-Out in Washington for this reason so Australia wouldn’t seem like a logical place for expansion. With that in mind their motivations here are a little more unclear.

But given how long people will wait at those pop-ups you could also argue they merely exist to provide a rare chance for people outside the US to get a burger they love way more than is really justified. But then to counter that point I can’t find an example of an In-N-Out pop-up in the US so they do appear to only utilize them in places without a retail presence and subsequently claim trademarks in those jurisdictions. I’m sure their overseas could not care less about what the ulterior motives are. But there would be a miles long line in NYC and they have never done one there.

That One Guysays:

Either set up shop or someone else can

On the one hand trademark is usually something I support as avoiding customer confusion actually does make sense and benefits the public, on the other hand with them so blatantly gaming the system at this point I’d be perfectly fine with the Australian government giving them the ultimatum of either setting up shop for real or losing the trademark in the country entirely, as repeatedly abusing the system like this in no way serves the public and makes a mockery of the point of trademarks since there’s no point in preventing customer confusion if the genuine article is effectively never available to begin with.

Anonymoussays:

Re: Re: Either set up shop or someone else can

I’m just not sure how forcing the other burger place to change their name hurts society either. If you make a spot on knock off of In-N-Out’s product you’re going to succeed under any name.

Countless American chains and one off burger spots sell their best replica of a double double and In-N-Out does not sue them. If you can replicate their burger without legal threat but they want to keep their name overseas I’m not really seeing a ton of harm being done.

Davidsays:

It's not really news.

Laws draw lines. Legal departments then look what the minimum requirements for toeing those lines for the desired results are. The desired results here are, essentially, apparently to keep a foot in the door. So the foot is placed with the amount of insistence required by the laws.

Foots in a door are a nuisance since they are neither in nor out. As one of the principal jobs of a lawyer is telling their clients how to place the foot efficiently, the profession is not generally loved. In Shakespeare’s Henry VI we already have a lower-class revolutionary exclaim "Let’s kill all the lawyers. God save your majesty! that they may agree like brothers, and worship me their lord. The first thing we do, let’s kill all the lawyers. Nay, that I mean to do."

For better or worse, this is straightforward lawyering with straightforward minimal actions based on the lawyering, which is making good value from having a legal department.

Nothing different than what went on for numerous centuries, including appealing to the public by theatrically denouncing the consequences of figuring out what it takes to toe the line of the laws.

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