Recent News - Burger IP Face-Off

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Sep 04

Hughes Media Law Group

Burger IP Face-Off

Posted by Hughes Media Law Group

It was lunch time and the HMLG office was hungrily lamenting at the lack of In-N-Out Burger locations in Washington State. Lo and behold, today we learn that CaliBurger is opening a location in the U District. Mmmmm…

Admittedly, we were excited, but because we work so heavily with IP here at HMLG we had to find out more about the IP implications of this In-N-Out inspired shop.  In-N-Out sued the CaliBurger back in 2011 for federal trademark and trade dress infringement after CaliBurger opened up a location in Shanghai, China using much of the same phraseology and décor that has come to be associated with In-N-Out.

Although the court battle only went as far as the issue of extraterritorial application of US trademark law before it settled, the whole situation gives rise to an important lesson for prospective business owners:

  • Trade dress protection is broad and encompassing. Take advantage of it to protect your IP, but also check to make sure you are not encroaching on any other company’s trade dress rights.

Trade dress is, essentially, the “total image and overall appearance” of a product. It can include the design of a product (size, shape, configuration, color), packaging, and even flavor and smell. Basically, any symbol or device that can carry meaning could constitute trade dress. Restaurant interiors have been found to be similar to product packaging. Hence, the claim by In-N-Out against CaliBurger.

Takeaway:  Thoroughly vet the market for possibilities of infringement before going into business. It may save you a court battle. 

These blog posts are made available by HMLG for educational purposes only and to give you a general understanding of the law. The information provided should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.