Parsing Burger Patties (And Words)

You can’t trademark an idea, but it looks like a burger chain might be able to trademark a burger.

In-N-Out Burger has filed a lawsuit alleging Smashburger’s newest burger infringes on its own trademarked burger. According to the Orange County Register, a complaint was filed on August 28 in California claiming that Smashburger’s “Triple Double” burger is too similar to In-N-Out’s Double-Double and Triple Triple (trademarked without the hyphen) burgers.

According to the filing, In-N-Out—founded in 1948—has held registered trademarks for its Double-Double since 1963 and the Triple Triple since 1966.

Denver-based Smashburger, founded in 2007, operates more than 350 locations worldwide, including 36 in California. In July, the chain introduced its “Triple Double” burger, made with two beef patties and three layers of cheese. The In-N-Out Double-Double is served with two beef patties and two layers of American cheese, while the Triple Triple, or 3X3, has three patties and three slices of American cheese.

In-N-Out’s lawsuit argues that the similarity in names “is likely to confuse and mislead the consuming public, and is accusing Smashburger of trademark infringement and dilution of its trademarks as well as unfair competition. The Southern California chain is seeking an injunction and compensation.

Meanwhile, South Philly Cheesesteaks & Fries, a franchise chain with 15 locations, has renamed the sandwich it introduced in April—the “Chick Philly”—after being slapped with an infringement allegation by a “certain unnamed chicken brand.” South Philly Cheesesteaks & Fries has renamed its sandwich the “Cease and Desist.”