In a world that is globally connected, one thing that can remain regional and provincial is restaurants, or, given the conglomerated nature of everything today, restaurant chains. Each region of the country has its own chains that denizens swear by, and in moving west in early-2014, I became privy to In-N-Out Burger, which has no locations further east than Texas. Its reputation preceded it, and while the food is worth the wait you’re inevitably forced to endure, the overheated hype from proselytizers made it impossible to live up to those outsized expectations. Nevertheless, you understand the populatity, and the brand that In-N-Out has built over decades.
Part of the appeal is the localized nature of the chain, which is why it’ surprising to see the company press its claim for trademarks in Australia. Techdirt reports that the Australian burger chain called Down ‘n Out was forced to turn over its signage and destroy all of its marketing material, after a judge ruled that the chain was not complying with a ruling that it was in violation of In-N-Out’s trademark.
An examination of the evidence, and a glance at the name, does suggest that Down n’ Out is, at a minimum, evocative of In-N-Out with its branding, and so the decision in favor of the American chain makes sense. That is, until you remember that In-N-Out is an American concern, without locations east of the Mississippi, let alone on the other side of the world. How could they lay claim to a trademark Down Under without any restaurants?
It turns out that the chain has operated pop-up locations in Australia every five years solely for the purposes of maintaining a claim to their trademark, which, while perhaps legally permissible, would seem to go against the spirit of what’s intended with trademark law, although I can’t attest to the practice of Australian law (I assume Paul Hogan is involved in some manner.)
Perhaps there’s a case to be made, outside of what is and isn’t legal, that Down ‘n Out could and should have picked a name and branding that wouldn’t potentially draw the ire of a chain with the resources to take them to court. That aside, it’s a bit ridiculous that In-N-Out can claim a trademark with functionally no presence in a country, given that it’s near impossible to make the case for legitimate confusion, as In-N-Out are the culinary version of Halley’s Comet in Australia.
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