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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Trademarks? We don't need no stinking trademarks! We need revolution!
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Ironic plot twist: Have the packages COD(cash on delivery)
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"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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Re: "Customer" Confusion
This is a leftie site - facts optional.
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Re: Re: "Customer" Confusion
What's your proposed alternative? Infowars?
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Re: Re: "Customer" Confusion
Hi Dan, and welcome to the Internet! See those blue words in the article? Click them, then read some more, then click some more and so on. Once you've read and clicked enough, come back here and make an educated comment instead of looking like a troll.
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Re: Re: Re: "Customer" Confusion
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Re: Re: Re: Re: "Customer" Confusion
I see you also teach how to piss in your own mouth, too. I'll pass.
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He must’ve been a customer of Big Bill Hell’s.
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Re: Re: "Customer" Confusion
"This is a leftie site - facts optional." - Well, yes, I agree. Rightie sites are often facts optional as well. That's why I prefer to research things myself (if it is a topic I can be bothered with) and I look for as many sources as possible.
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Re: Re: Re: "Customer" Confusion
At least unlike "Dan," Techdirt takes the option with the facts.
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Re: Re: "Customer" Confusion
Actually, this is a centrist site. Fake news created by either side is optional here. This site deals in actual facts, which by their very nature contradict the lies and fake news propaganda of the right and left.
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Re: "Customer" Confusion
They do not operate in Australia. You can see previous articles to see how absurd this case is.
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Re: "Customer" Confusion
The ruling happened in February.
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0193
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Re:
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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.
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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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Re:
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You paid money for a subscription just to troll a website? Gee whiz, Hamilton! Thanks for another reason why you're an idiotic douchebag. How many is that now? Thirty-seven thousand?
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Re:
https://www.techdirt.com/submitstory.php
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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?
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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...
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They should change their name to WTF Burger
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Re:
Sorry, too close to What-A-Burger
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Re:
This is actually a thing.
In fact, it appears to be multiple things, which aren't currently trying to sue each other out of existence.
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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.)
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The Deranged Enforcement Assholes are another criminal agency that needs to be dismantled.
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