Like the beach and palm trees, In-N-Out Burger is a part of the Southern California landscape. The fast food institution that started in Baldwin Park in 1948 has expanded into other western states over the years, while becoming more identified with SoCal.
The appeal has gone global: A company with a similar name popped up in Australia, also specializing in burgers. Aussies can order delivery from In & Out Aussie Burgers — no relation to the California chain. Our In-N-Out has taken the down under version to court.
If you think the 7,500 miles of ocean between Sydney and the Southland is too far for a double-double and animal-style fries to travel, you’d be surprised.
“Before the pandemic, In-N-Out used to host pop-ups in Australian cities every year, essentially,” says Georgina Mitchell, a court reporter with the Sydney Morning Herald who has been following the legal dust-up between In-N-Out and the faux Australian upstart.
“They would come to Brisbane, Melbourne, and Sydney and have these pop-up events where people would queue for hours and get that Instagram-worthy photo of them, holding the In-N-Out burger and the milkshake, and the fries. It was kind of a cult brand here before this.”
This isn’t Mitchell’s first time covering a trans-Pacific burger battle. In-N-Out had taken another Australian eatery called “Down N’ Out” to court over pawning itself off as the California chain and won last year.
Mitchell says the judge in the Down N’ Out case ordered reams of data to find out just how familiar Australians are with the California chain. The deep-dive included “looking at statistics from the Australian Bureau of Statistics of how many Australians travel to America every year,” she explains. “LAX is really a popular airport, so how many people go to California? And the judge in the Down N’ Out case concluded it was pretty obvious that Australians were aware of In-N-Out.”
This latest pretender is less subtle. California’s In-N-Out claims the new Australian knock-off first used its exact name and even spelled the same way. The U.S. company fired off a cease and desist letter, and the down under eatery repackaged itself as “In & Out Aussie Burgers,” throwing in the ampersand and adding the “Aussie.” Still too close says In-N-Out, who’s suing the Australian company, alleging misleading or deceptive conduct and trademark infringement.
Mitchell says retooling the name to the still comparable In & Out Aussie Burgers appears to be the only change the Australian company made.
“If you have a look at their menu, it’s pretty similar in broad terms to what the original In-N-Out offers,” says Mitchell. “It’s got burgers, it’s got fries, it's got onion rings — controversially, thick shakes.”
Mitchell reports that during court proceedings last week, the businessman behind In & Out Aussie Burgers was adamant that his outfit is completely different.
Reading the names In-N-Out and In & Out, you can see the visual difference, but Mitchell says there’s another facet to this legal battle.
“Interestingly, in Australian copyright and trademark law, it’s not just how something is written, it’s how something is said.”
And if the past is any guide, the Australian courts take a liberal approach when it comes to the aural aspect of a trademark.
“On its face, that business — Down N’ Out — would have a much better case, but the judge even found that when you say it out loud, that name evokes In-N-Out,” Mitchell says.
Adding an entire extra patty of complications to this case, the businessman behind In & Out Aussie Burgers has decided to represent himself in the complicated legal case.
“He’s got two weeks to prepare his defense for the case that he’s going to file in court. He was saying he’s going to try and teach himself how to write that defense and learn all the intricacies of this,” says a slightly vexed Mitchell. “The judge was recommending to him [that] it would be very beneficial for him to consult a lawyer, because … it’s a very technical area of the law. So it’ll be interesting to see if he does take that advice.”
While the business owner does a bit of light reading regarding copyright law ahead of submitting his defense, Mitchell says there’s still a chance for all this to be resolved before the next court date in a few weeks.
“After he’s filed his defense, they’re going to immediately go to mediation. There’s a court registrar who sits down with [the two sides] and says, ‘Is there any way we can figure this out? What would make you happy to make this court case go away?’” says Mitchell. “If that’s not successful, if [the owner] digs in his heels and says, ‘My business is totally different,’ then In-N-Out has asked for an expedited trial. They want this dealt with quickly, and they say he’s stolen their name and he shouldn’t be able to use it anymore.”
