Beloved burger chain In-N-Out Burger, home of not-so-secret menu items and “animal style” fries, has sued burger competitor Smashburger, claiming that Smashburger’s new “Triple Double” burger infringes on In-N-Out’s “Double-Double” and “Triple Triple” trademarks.
Burger aficionados and dabblers alike are probably well-aware of In-N-Out’s “Double-Double” burgers, which come with two meat patties and two slices of cheese. According to In-N-Out’s complaint, Smashburger recently began marketing a “Triple Double” burger, which contains two meat patties and three slices of cheese. In-N-Out alleges that it has had registered trademarks on the mark “Double-Double” since 1975, and “Triple Triple” since 1990 – and further, its customers frequently mix and match the terms to create customized orders, including a “Triple Double.” Smashburger apparently filed applications with the USPTO in November 2016 to trademark the term “Triple Double.”
In-N-Out claims that Smashburger’s use of the mark “Triple Double” has damaged In-N-Out because consumers are and will be confused and misled into believing that In-N-Out is somehow affiliated with Smashburger, and In-N-Out will suffer injuries to its reputation and goodwill. Both burger chains have locations in southern California, where In-N-Out’s lawsuit was filed.
If the case were to go to trial, prospective jurors should consider demanding a blind taste test to determine whether there is, in fact, a likelihood of confusion between In-N-Out’s Double-Double and Smashburger’s Triple Double.