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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Filed Under: australia, burgers, pop-ups
Companies: in-n-out, rich asians pty ltd

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  1. identicon
    David, 10 Aug 2021 @ 5:59am

    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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