Sydney hamburger store Down N’ Out bills its food as “American style burgers, done right”.
But US giant In-N-Out disagrees, and is taking the business to court claiming Down N’ Out has engaged in deceptive and misleading conduct by mimicking its own brand, as well as infringing on its own brand.
Legal action got under way in the Federal Court last year against Down N’ Out’s parent company, Hashtag Burgers Pty Ltd.
The business has one store in Sydney’s CBD at the Sir John Young Hotel and another north of the city in Top Ryde. In-N-Out has more than 300 across the US and over the last 2.5 years, has promoted the brand in Australia with one-day “pop up” sites handing out 300 burgers each in Sydney, Perth and last month, in Melbourne.
The two sides have been to mediation, but the case appears to be proceeding, returning to court earlier this month. In-N-Out is required to supply evidence supporting its claim by June.
The US business has accused Hashtag Burgers of “passing off”, meaning they’re pretending to be In-N-Out, and is seeking damages and profits from Down N’ Out.
In-N-Out wants the Federal Court to order Hashtag Burgers to stop using the Down N’ Out name, and to pay damages or hand over any profits made from using the name.
Trademark lawyers have told Fairfax Media that the recent appearance of the brand in Australia was likely designed to protect its trademark locally under local ‘use it or lose it’ laws, which give companies five years to activate their brand when it’s trademarked. The company has hosted similar pop-up events globally.
Hashtag Burgers creative director, Ben Kagan, a respondent in the case, said he was unable to comment, but the company has previously told media that they deny In-N-Out’s claims and will defend them.
The Australian business is also pushing ahead with plans to launch 10 new Down N’ Out stores in 2018, including two in the next two months.
A five-day hearing for the case has been set down for June 11, 2019.
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