On August 28, 2017, In-n-Out filed a lawsuit against Smashburger for trademark infringement in the Central District of California. In-n-Out claims that Smashburger’s TRIPLE DOUBLE mark is too similar and infringes on its DOUBLE DOUBLE and TRIPLE TRIPLE trademark rights, for which it owns federal registrations. In 2016, Smashburger filed applications for SMASHBURGER TRIPLE DOUBLE and a couple months ago, the USPTO approved the applications for publication, despite In-n-Out’s prior pending registrations. So, at least preliminary, the USPTO tends to side with Smashburger. In-n-Out opposed Smashburger’s applications, and then filed a civil suit. Generally speaking, in the food industry, more than any other it seems, companies tend to pick fairly descriptive wording to denote their products. In the spectrum of strong to weak trademarks, descriptive marks tend to be on the weaker end, which leaves some room for competitors to move in with similar marks and avoid infringement. That’s what appears to have happened here, in my opinion. I believe this is why Smashburger’s applications were approved by the USPTO, and not denied.
Jennifer Ko Craft may be reached in our Las Vegas office at 702-550-4441. Ms. Craft is an “AV/Preeminent Attorney®” as rated by Martindale-Hubbell® member in the firm’s Intellectual Property and Media, Sports & Entertainment Departments. She practices primarily in the areas of domestic and international trademark and copyright prosecution, licensing and enforcement. Ms. Craft consults with clients in identifying various protectable aspects of the clients’ products, services and concepts, and in developing and managing their intellectual property portfolios. She also resolves trademark, copyright, and domain name disputes, including the resolution of disputes over contested trademarks before the Trademark Trial and Appeal Board and enforcing clients’ intellectual property rights on the Internet.