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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Companies: hashtag burgers, in-n-out

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

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Anonymous Coward says:

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

The Chinese Revolution is a wonderful development in the
advance of humanity. Mao Tse-tung and the Chinese Communist Party have
made many important breakthroughs in developing revolutionary strategy in
the semi-feudal, semi-colonial world. The thought common to Mao and Ho
Chi Minh —that the central revolutionary force of our time is the oppressed
nations and peoples of the world leading the liberation struggle against
imperialism— is the guiding strategic principle of this era.

The Omerica (Obama-American) revolution will be the next great development. Michelle and I are on-board, are you? Well, actually, I’m boarding her at this very moment, trying to find the wet spot in a sea of flesh.

Omerica, the beautiful, the land of fat ass bitches that love me! Lalala

This comment has been deemed insightful by the community.
charliebrown (profile) says:

"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.

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Daydream says:

Moral of the story; if you admire someone, mimic them!

If they’re worth your love, they’ll accept it, or even embrace it…or at least when they ask you to stop, they’ll do so politely and with good cause.

If they’re unworthy, they’ll threaten, they’ll sue, they’ll try to bully you…and you and everyone else will know what they really are rather than being blindsided later.

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Anonymous Coward says:

Re: Re:

Right, I agree with that. Admire, mimic. Techdirt for example. This is a GREAT place for Students to learn Anarchy.

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Anonymous Coward says:

Re: Re: Re:

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Anonymous Coward says:

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

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

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Anonymous Coward says:

Re: Re:

That’s right! And another issue:

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The history of mankind is a history of repeated injuries and
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direct object the establishment of absolute tyranny over her.

Abolish men! Cover the issues! BLM! GARBAGE! ALLOFIT!

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Anonymous Coward says:

Re: Re: Re:

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