Bowie & Jensen’s Joshua A. Glikin represented famous West Coast burger joint In-N-Out Burger against a restaurant formerly called Grab-N-Go in Aberdeen, Maryland. Glikin successfully negotiated a settlement in federal court that has since led the opposing side to change their name.
The West Coast cult favorite In-N-Out Burger has become famous for their elusive and expansive “secret” specialties which largely outnumber the legitimate items on the menu.
“Their secret menu is not so secret in the intellectual property arena,” firm partner and intellectual property attorney Joshua Glikin points out.
Restaurant trademark law is complex. In-N-Out has trademarks on their iconic “Animal Style” and “Flying Dutchman” Burgers, despite the burgers’ absence from the menu.
The trademark infringement lawsuit filed by Irvine, California-based In-N-Out alleged that Grab-N-Go used similar red, white, and yellow designs and typeface in their logo and menu board. The company also alleged that Grab-N-Go’s “Wild Style Burger” was strikingly similar to In-N-Out’s “Animal Style” and used the same ingredients. Lastly, the use of ‘N’ for the word ‘and’ in the restaurant’s name would cause confusion and deception as those encountering Grab-N-Go may mistakenly assume that the restaurant is in some way affiliated with In-N-Out.
In-N-Out also asserted trademark dilution. Trademark dilution can exist without the presence of competition, which helped them in this case as the closest In-N-Out is in Texas. However, in order to claim dilution the trademark must be famous. In-N-Out claimed that its website received 600,000 hits from Maryland residents and has sold upwards of $30,000 in merchandise to Maryland residents from its online store.
The two burger joints entered into a tentative settlement in January 2012. The settlement was contingent upon In-N-Out’s approval of a new logo for Grab-N-Go. Grab-N-Go did more than that. The owners, Nick and Georgia Batsis, changed the name to Georgia’s and began serving Greek cuisine instead. The case was reopened in March of 2012 and in September Grab-N-Go denied allegations in response to the lawsuit.
U.S. District Court Judge Richard D. Bennett signed a settlement order Tuesday April 16th, 2013 dismissing the lawsuit.
For more information please contact Joshua A. Glikin, firm partner and manager of the litigation team in the firm’s intellectual property department.