The Papas and the Pappas: Burger Joint Rebrands Over Trademark Dispute

from the no-good-deed dept

We're going to keep repeating this until it becomes common knowledge: trademark law is designed to keep the public from being confused as to the source of a good or service, not as some mechanism for businesses to lock up language in a competitive marketplace. In other words, if there is no risk of customer confusion, trademark laws very rarely come into play in terms of disputes or infringement.

Which brings us to Papa's Burgers in Texas and its announcement that it will be changing its name and branding.

So, a company that has existed as Papa's Burgers for 8 years is changing its name due to a C&D notice. So what's going on here? Well, the company decided to finally get around to trademarking its name but was advised by its counsel that there was another large restaurant group that had a similar name. That company was Pappas Restaurants, which operates a wide swath of venues, such as Pappas Bros. Steakhouse, Pappas Seafood House, and, yes, Pappas Burger.

Due to the that input from counsel, Papa's Burgers owner Robert Walker sent a letter to Pappas Restaurants explaining his respect for their business and his intention to trademark his business name. Kind of a nice thing to do. His reward for that was receiving the C&D notice.

Counsel advised Walker that he can fight the trademark since it's a one-letter difference and a different city, but that it could be very costly - upwards of $25,000 just to start the process.

The second option is to rebrand. A difficult decision Walker said, because the restaurant has already received so many public accolades in the nearly 9 years it's been open.

Note that last bit: Papa's Burgers has been operating for 9 years. The C&D notice sent by Pappas Restaurants doesn't say that the company should not use the name in new restaurants; it insists it stops using its name entirely. Except surely Pappas Restaurants would have already heard about all of this and sent a C&D long ago if there was any reason to think there would be public confusion here. And, yet, the company only fired off a C&D once Walker informed them that his business exists and that he planned to file for a trademark. That sure seems to indicate that any worry about customer confusion is unwarranted, no?

Unfortunately, that is now a moot point. Papa's Burgers is changing its name as a result of all of this. Because trademark bullying works.

Filed Under: burgers, likelihood of confusion, papa, trademark
Companies: papa's burgers, pappas restaurants

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.

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

In 'N Out Burger Continues Its Bullshit Pop-Up Technique To Keep Trademarks It Isn't Actually Using

from the literally-in-and-out dept

Roughly a year back, we discussed famed American burger chain In 'N Out Burger cynical process for keeping trademarks it owns in certain countries in place, despite the chain having no actual presence in the country. You might be wondering how a company with no storefronts or delivery business in a given country could possibly hold valid trademark rights to its brand, given trademark law's requirement that companies actually use their trademarks in commerce to keep them. The answer to that is that In 'N Out flies staff out to several countries once every couple of years and launches a pop-up store, slinging burgers for a short period of time before packing everything up and heading home. The chain claims that this is done to raise its profile in other countries for an eventual permanent launch. Except that those launches never actually happen.

It's all very frustrating, if for no other reason than nobody can figure out why In 'N Out cares so much about trademark rights in a country it sure doesn't seem to have any interest in doing business in. Well, the confusion continues, as In 'N Out has announced it will once again launch pop-up stores in New Zealand.

American fast food chain In-N-Out Burger will open a pop-up store in Auckland on Thursday, sparking hopes for a permanent restaurant.

The pop-up store will be be open between 11am and 2pm at the Portland Public House.

But if history is anything to go by, burger lovers should not get too excited.

No, they shouldn't. Even this Stuff post indicates that there doesn't seem to be any question as to the chain's doing this strictly to keep its trademarks from being invalidated. The law in New Zealand requires a trademark holder to engage in "genuine use" of the mark within the country three years from it being granted. These pop-up stores are In 'N Out attempting to fulfill that genuine use requirement, although there are questions as to whether or not such a use actually counts as genuine.

Lawyer Clair Foggo, from Potter IP, said the company could be trying to protect its trademark in New Zealand.

"What happens is if you have a trademark registration, you have three years from the date of registration to use it. If you don't use it in a genuine way it become vulnerable to revocation."

If a trademark is not used within a three year period and lapses, a person can apply to have it removed from the register and may file their own application for the trademark claim, Foggo said.

"It sounds like they are trying to use their trademark in a genuine way, not just putting out some merchandise or using it on social media," she said. "However there may be some question whether operating a one day pop up shop amounts to "genuine" or token use."

So what counts as genuine use? It's delightfully ambiguous, of course. That ambiguity melts away, however, once you consider what the purpose of trademark law actually is, which is to prevent public confusion as to the source and association of goods and services. In that context, fleeting uses by major foreign brands preventing domestic companies from making use of similar branding makes absolutely zero sense. In fact, you could argue that In 'N Out's tactic achieves the opposite. Ironically, the use of pop-up stores only increases the brand awareness of the company within New Zealand, where the company mostly does not bother doing business. It may be only because of these pop-up stores, in other words, that a domestic company using similar branding would create confusion.

Bottom line: it would be quite nice if In 'N Out would stop playing these trademark games, and ceased using hamfisted and cynical tactics just to have trademark rights in a country it doesn't want to do business in.

Filed Under: burgers, new zealand, pop-up stores, trademark
Companies: in-n-out

DailyDirt: Colorful Burgers Because Why Not?

from the urls-we-dig-up dept

Summer is here, and maybe you've already fired up the grill and cooked some burgers in the backyard. But why settle for plain old regular burgers when you could cook your own kinda disgusting-looking ones that are novelties in Asia? (You might need a little squid ink and bamboo charcoal.) Or you could visit Japan and just buy a strangely colored burger from Burger King or McDonald's. Too bad Heinz doesn't make goofy-colored ketchup anymore.

• Burger King Japan is going to sell bright red burgers in two varieties: Aka ("red") Samurai Chicken burgers and Aka Samurai Beef burgers. The red buns and red cheese will come from added tomato powder, and the ketchup will just be ketchup -- or red hot sauce made from miso and hot pepper. [url]
• Burger King also has an all black burger in Japan. It comes with black buns, black cheese and a black sauce -- not just black buns like the Darth Vader ("Dark Vador") burger offered by French fast food chain Quick a few years ago. The Kuro ("black") Pearl burger and Kuro Diamond burgers were first introduced in 2012 and have been offered in limited quantities ever since. [url]
• McDonald's Japan also sold a black burger it called the 'Squid Ink Burger' for a limited time around Halloween. It wasn't actually that black, though, and the cheese was just normal. McD's sold 'black and white' burgers in China in 2012, but unsurprisingly these burgers aren't permanent menu items. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: black burger, burgers, colors, darth vader, flavor, food, ketchup, natural coloring, squid ink, taste
Companies: burger king, mcdonalds, quick

DailyDirt: Better Burgers?

from the urls-we-dig-up dept

Grilling up some hamburgers for the summer is a very common event, but some folks have problems with eating beef (or any meat). And some people are turned off by the possibility of eating horse meat in their burgers (though horse meat is consumed regularly in some places). Here are just a few stories on how we might improve burgers or avoid cows in the process.

• Researchers at Kansas State University have created a burger rich with omega-3 fatty acids. According to the scientists, "As a society, Americans' consumption of fish, especially fish that contributes to these omega-3 fats, is quite low compared to other proteins. ... Americans do, however, like hamburgers. So if we can give people a hamburger that is rich in omega-3s, it's an alternative form of a product that they already eat and does not require a lifestyle change, which is difficult to make." [url]
• If you're looking for an alternative to a hamburger containing beef, here are 27 alternative recipes. There are turkey burgers, salmon burgers, chicken burgers, pork burgers, black bean burgers, "veggie" burgers, Portobello mushroom burgers... but after you slather them in various condiments, they're arguably just as bad for you as a regular hamburger. [url]
• Sergei Brin is the once-anonymous backer behind a fully lab-grown burger that cost about $330,000 to make. The beef cells were grown without killing any animal, and the cooked meat seems to taste like very lean beef (since they didn't grow fat with the cells they used). We're getting a little closer to the cows served at the Restaurant At The End of the Universe... [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: beef, burgers, cow, fatty acids, food, hamburger, lean meats, omega-3, protein, sergei brin

DailyDirt: Are You Sure You're Eating What You Think You're Eating?

from the urls-we-dig-up dept

It seems like every day there's another report of problems with our food -- E. Coli in beef and packaged salads, Salmonella in canteloupe, Listeria in packaged sliced apples, etc. Worries about bacterial contamination in food is pretty common, but it seems like we should also be worrying about whether the food we're eating is really what we think it is. Recently, there was the scandal in the UK over beef products that contained horsemeat. But thanks to modern day technology, scientists are now able to test food products and determine whether they are indeed what they claim to be. Here are just a few examples.

• After that whole horsemeat scandal, Burger King has announced that it will be testing its burger patties for non-beef DNA, including horse, pork, and lamb. So far, it has been testing specifically for horse DNA and hasn't found any in its beef, but that doesn't necessarily mean it's free of other kinds of animals... [url]
• The US FDA has officially adopted DNA barcoding to detect seafood mislabeling. Think you're eating "white tuna" sushi? Maybe you're actually eating "escolar" which has been banned in Japan since 1977 because the Japanese government is concerned about its "toxicity". [url]
• A laser "isotope ratio-meter," which was originally designed to study carbon isotope levels on Mars, is now being used to test the purity of honey. This kind of laser analysis can even match the honey to the flowers of a specific geographic region. Honey is expensive, so it's often adulterated with cheaper ingredients, like sugar, malt sweeteners, corn or rice syrup, to name just a few honey substitutes. [url]

Filed Under: barcoding, beef, burgers, dna, food, horsemeat, isotope, laser, sushi
Companies: burger king

DailyDirt: I'll Gladly Pay You Tuesday...

from the urls-we-dig-up dept

Lots of people seem to have an unhealthy obsession with hamburgers. So much so, that they're willing to pay incredible sums of cash for a single meal that includes cooked ground meat between two pieces of bread. Spending hundreds -- or thousands -- of dollars on a burger might not sound like a very happy meal to everyone, but there are more than a few places willing to serve up some expensive burgers for paying customers. Here are just a few examples.

• The first burger grown in a lab probably won't taste all that good, but it'll cost about $330,000 to create a synthetic hamburger from cow stem cells. The first lab-grown burger should be ready to eat sometime in October, and the project is being funded by an anonymous donor. [url]
• If you hit the jackpot in Vegas, there's a ton of ways to spend too much money on food out there -- and one option is a $5,000 burger at Fleur de Lys. In addition to Kobe beef, foie gras and truffles, you'll also get some wine and the bragging rights. [url]
• The Guinness Book of World Records named 'Le Burger Extravagant' from Serendipity 3 in NYC as the world's most expensive burger, priced at $295. Apparently, the folks at Guinness have never been to Vegas (or they abide by the "stays in Vegas" rule very strictly), but they also seem to have missed the $666 Douche Burger sold out of a food truck in NYC, too. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: burgers, expensive, food, guinness, world record

DailyDirt: Burger Innovations From Around The World

from the urls-we-dig-up dept

The USA has no monopoly on hamburger innovations. Sure, Americans probably eat more burgers than any other country, and we came up with the drive-thru and drive-in processes for burger orders. But the possibilities for burgers have no limits, and here are just a few global developments in the world of burger technology.

• In Germany, McDonald's crowdsourced a few new menu suggestions which were released as actual products for sale over the month of May. The "Pretzelnator" was the first item -- offering folks a ham & cheese sandwich on a pretzel-like bun. [url]
• In Japan, the phrase "have it your way" translates to "put as much bacon as humanly possible on my Whopper, please." Japanese Burger Kings will put 15 slices of bacon on your burger for about 100 yen, and for about 7,000 yen, that's 1,050 slices of bacon on your order. [url]
• Pizza Hut in Dubai has added cute little cheeseburgers to pizza crust. They've also added mini chicken fillets on pizza crusts and cream cheese, too. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

Filed Under: bacon, burgers, food, pizza, pretzelnator, whopper
Companies: burger king, mcdonalds, pizza hut

DailyDirt: Grabbing A Burger

from the urls-we-dig-up dept

Hamburgers are one of America's best-known foods, and McDonald's has popularized this kind of fast food all over the world. (The Economist even publishes its Big Mac Index to compare national economies according to the price of McD's iconic burgers.) Here are just a few more interesting tidbits with all-beef patties, special sauce, lettuce, cheese, pickles, onions -- all on a sesame seed bun.

• McDonald's stopped using pink slime in its burgers since about August of 2011. It's interesting that no one seemed to notice any difference in taste over the last few months.... [url]
• Happy Meal toys cost extra in San Francisco, due to a city law aimed at preventing kids from eating unhealthy fast foods. Outlaw toys and only outlaws will have toys? [url]
• Japanese folks who love burgers will be able to order a Big Mac from their car's navigation system. Next: autonomous vehicles will pick up your food and deliver it to you. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

Filed Under: big mac, burgers, food, happy meals, jamie oliver, pink slime, toys
Companies: mcdonalds