Judge Orders Down 'N Out Burger Joint To Hand Over All Signage To In-N-Out, Which Has Almost No Presence In Australia

from the up-and-in dept

Two years ago we wrote a post about famed burger-slinger In-N-Out's bullshit strategy for keeping its trademarks in Australia active and valid. That strategy amounts to the chain doing a popup restaurant briefly once every five years, essentially the minimum to keep a trademark active through use in the country. This has been going on for some time, which makes it fairly clear that In-N-Out has no real plans to have a permanent presence in Australia. And, yet, it goes about keeping its trademarks active.

Why? Well, at least in part, apparently, so that it can bully other companies that might brand themselves in a similar fashion. From our earlier post, In-N-Out went after an Australian burger chain calling itself Down 'N Out, which used marketing that was clearly an homage to the California chain. That kind of homage would certainly land a company in trademark hot water in a competing market... except In-N-Out is only in the Australian market in the most transient sense possible. Despite that, an Australian court recently ruled that Down 'N Out wasn't complying with its trademark ruling in favor of In-N-Out and, even though the former plans to appeal the ruling, it must now turn over all physical signage for Down 'N Out to In-N-Out and destroy all digital material for that brand as well.

In May, Hashtag Burgers again drew the ire of In-N-Out by setting up a pop-up Down N' Out food truck in Marrickville. It has said it plans to lodge an appeal against the decision. Justice Katzmann said her decision was "not to be treated as provisional" pending the outcome of any appeal. She refused to grant a stay of her decision to stop it taking effect during the appeal process.

Justice Katzmann ordered Hashtag Burgers to hand over to In-N-Out's Australian lawyers within 60 days all material bearing the Down N' Out logo including "signage, packaging, promotional material, advertising, brochures, pamphlets, merchandise, stationery and business cards".

Ironically, that handing over of branding will likely take a great deal of postage to complete because, again, In-N-Out doesn't have any actual presence in Australia. Instead, they'll likely have to turn that material over to the California chain's local lawyers while the appeal process runs its course. But let's not lose sight of how laughable this all is. In-N-Out doesn't have a presence in Australia beyond a popup store strategy that goes off twice a decade. In other words, the court is aggressively ruling against an entity within the country and in favor of a foreign company blatantly making a farce of that country's trademark laws.

Yes Down 'N Out used homage branding harkening back to In-N-Out. And yes its executives have joked around in past communications that they might want to change that branding to avoid getting sued. All of that would be great evidence of willfull trademark infringement... if In-N-Out had any customers in Australia to potentially confuse. But a handful of popup store burger-buyers once every five years seems to me to be a bit of a stretch.

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Filed Under: australia, competition, down 'n out, homage, trademark
Companies: hashtag burgers, in-n-out


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 9 Jun 2020 @ 8:18pm

    Trademarks? We don't need no stinking trademarks! We need revolution!

    The Chinese Revolution is a wonderful development in the
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    Omerica, the beautiful, the land of fat ass bitches that love me! Lalala

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Jun 2020 @ 8:32pm

    Ironic plot twist: Have the packages COD(cash on delivery)

    reply to this | link to this | view in chronology ]

  • icon
    charliebrown (profile), 9 Jun 2020 @ 9:12pm

    "Customer" Confusion

    I'm Australian and I am confused

    Firstly, our courts have been closed since April due to restrictions for COVID except for extreme cases like murder, so how the hell did this ruling happen in May?

    Secondly, I have never, ever seen nor heard of In-N-Out operating in Australia in any way shape or form. In fact, I personally heard of Sonic and White Castle and Wendy's even being in existance before I heard of In-N-Out burger.

    reply to this | link to this | view in chronology ]

  • identicon
    Daydream, 9 Jun 2020 @ 11:13pm

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    • This comment has been flagged by the community. Click here to show it
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      Re:

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        Re: Re:

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  • This comment has been flagged by the community. Click here to show it
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    judgeidiot, 10 Jun 2020 @ 1:54am

    idiotjudge

    judges verdict can be put on hold, so she is stupid to say what she did. idiot judge and another stupid woman at that. they are stupid no matter what anyone says. women that is.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2020 @ 2:07am

    This is similar to what patent trolls do, provide no
    service to anyone or any product , but sue other Companys that provide a product to the public. Making a pop up service once every 5 years is not really providing a service
    Macdonalds sued supermac who only have fast food outlets in Ireland over trademarks in Europe and lost badly ,
    But at least Mcdonalds have outlets all over Ireland

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    reply to this | link to this | view in chronology ]

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      • This comment has been flagged by the community. Click here to show it
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        Re: Re:

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        • identicon
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          Re: Re: Re:

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    • icon
      nasch (profile), 12 Jun 2020 @ 7:16am

      Re:

      On another topic 1000 s of twitch users are removing
      old videos because the music company's are sending dmca notice, s over song clips in video streams maybe techdirt could cover that issue

      https://www.techdirt.com/submitstory.php

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2020 @ 6:03am

    so how much was the prick of a judge paid to come to this verdict? he surely didn't do it for nothing, did he?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jun 2020 @ 9:53am

      Re:

      Why the judge was paid in all the In-N-Out he can eat, at any of their Australia locations any time of year for the next 4 years (assuming their last pop-up was last year)....

      Nobody said he was a smart judge, only that he could be bought for less than peanuts...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2020 @ 10:41am

    They should change their name to WTF Burger

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jun 2020 @ 12:06pm

    Modification to the order

    I think this is a great ruling. So great, that the judge should be required to hand-deliver the offending material. Personally. To an Australian resident employee of In-N-Out. Without leaving the country. Before the judge can collect their next paycheck.

    (/s, because stupid is pervasive.)

    reply to this | link to this | view in chronology ]

  • identicon
    bobob, 10 Jun 2020 @ 1:11pm

    The Deranged Enforcement Assholes are another criminal agency that needs to be dismantled.

    reply to this | link to this | view in chronology ]


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