I came across an interesting article today about In-N-Out, one of my favorite burger joints, suing Smashburger for trademark infringement. The complaint that In-N-Out filed on August 28 in California claims that Smashburger’s “Triple Double” burger is too similar to In-N-Out’s Double-Double and Triple Triple burgers.

In order for In-N-Out to stop Smashburger from using the mark, In-N-Out would have to prove the likelihood confusion. When determining the likelihood of confusion, a court will look at several factors derived from Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961), known as the “Polaroid Factors.” These factors are intended to be a guide for the court system to determine whether or not a consumer will be confused when seeing the two similar marks. These factors are as follows:

  • Strength of the senior user’s mark. The stronger or more distinctive the senior user’s mark, the more likely the confusion.
  • Similarity of the marks. The more similarity between the two marks, the more likely the confusion.
  • Similarity of the products or services. The more that the senior and junior user’s goods or services are related, the more likely the confusion.
  • Likelihood that the senior user will bridge the gap. If it is probable that the senior user will expand into the junior user’s product area, the more likely there will be confusion.
  • The junior user’s intent in adopting the mark. If the junior user adopted the mark in bad faith, confusion is more likely.
  • Evidence of actual confusion. Proof of consumer confusion is not required, but when the trademark owner can show that the average reasonably prudent consumer is confused, it is powerful evidence of infringement.
  • Sophistication of the buyers. The less sophisticated the purchaser, the more likely the confusion.
  • Quality of the junior user’s products or services. In some cases, the lesser the quality of the junior user’s goods, the more harm is likely from consumer confusion.
  • related products and services.

Not every factor is relevant in each case, but the court system will use these factors as a guide to help determine infringement. In-N-Out has been around since 1948 founded in a Los Angeles suburb of Baldwin Park, California by the Snyders. The Triple Triple and Double Double have been around for almost just as long, so the Court is likely to rule that In-N-Out has a very strong mark. I believe the strongest argument In-N-Out may have, and probably one of the hardest to prove, is evidence of actual confusion. Will the consumer be confused that Smashburger’s Triple Double is the same as In-N-Outs Triple Triple, or Double Double? If In-N-Out can provide evidence of confusion then they may have a chance at winning this case. In-N-Out has won in the past over similar chains, so they have a good chance here as well. This is one of the many reasons why trademarking and branding your products are so important to a business. Building a brand around product so that there is strength in a company’s mark is critical for keeping competitors away. Here at HPS Law Group, we can help you build a intellectual property plan to help you protect your business