Two fast-food burger restaurants are embroiled in a trademark infringement lawsuit in the Central District of California as In N Out has sued Smashburger over the name of its new Triple Double burger.
In N Out claims that the new burger infringes with its Double Double and Triple Triple Burgers. In N Out’s Double Double mark was approved by the USPTO in October 2014. Triple Triple was awarded a registration in 1990.
Smashburger filed a trademark application for Smashburger Triple Double and Triple Triple and that mark is being opposed by In N Out.
It will be interesting to see how this litigation plays out as well as the opposition filed by In N Out.
From a trademark perspective, there is an argument that these trademarks are descriptive as each is merely describing the burger (i.e., double double has two patties, a triple triple has three patties, in the case of the triple double it has two burgers and three levels of cheese). Descriptive marks tend to be on the weaker end of mark which allows for some flexibility from competitors to register similar marks and avoid infringement. Based on the descriptiveness issue, we will see if Smashburger attempts to file a counterclaim and perhaps seek to cancel In N Out’s current trademarks. We will see if that is what happens here.