SANTA ANA, Calif. (CN) — Double-Double or Triple-Double? Even regulars at In-N-Out or Smashburger might hesitate if asked to identify which chain makes which burger, In-N-Out said Monday in a federal trademark complaint.
In a federal lawsuit Monday, In-N-Out is betting that a judge will agree. It made a trademark infringement claim against Denver-based Smashburger, asking the court to enjoin it from using the “Triple Double” mark, claiming that customers will confuse it with In-N-Out’s “Double Double” and “Triple Triple” marks.
In-N-Out Burgers, founded in 1948, is a California favorite that has expanded to Arizona, Nevada, Utah, Texas, and Oregon.
Smashburger, founded 10 years ago, is a nationwide chain with 36 outlets in California.
In-N-Out says it registered a series of trademarks for its hamburgers and cheeseburgers beginning in 1975 under the names Double-Double, then Triple-Triple and Quad-Quad.
Smashburger launched its Triple Double nationwide in July this year at around the same price as In-N-Out’s similarly named products, according to the complaint.
Smashburger filed four trademark applications with the U.S. Patent and Trademark Office on Nov. 11, 2016. In-N-Out is disputing the marks at the agency.
It claims that Smashburger created the marks to “trade on the goodwill associated with In-N-Out’s registered marks,” and says Smashburger’s Triple Double “creates a likelihood of consumer confusion because actual and prospective customers are likely to believe that In-N-Out has approved or licensed Smashburger’s use of its marks.”
In-N-Out seeks an injunction that prevents Smashburger from using the Triple Double marks, plus damages for trademark infringement and dilutions, unfair competition, and costs of suit.
It is represented by Carolyn Toto with Pillsbury Winthrop.
Smashburger co-founder and CEO Tom Ryan said he was “flattered” by the attention.
“The Triple Double burger is clearly popular with our customers and is not comparable to any In-N-Out menu offering,” Ryan said in a statement. “We invite all burger lovers to taste the Smashburger Triple Double and decide for themselves.”