Imagine if you had been around in 1904, when burgers first became popular, and registered 'BURGER' as a trademark for a meat patty sandwiched in bread.
Today, even a royalty of 0.1 cents per burger would give you an annual income of $1 billion worldwide. But don't think of rushing out and registering the word 'Burger' now because it is too widely used to be registered!
Today, Burger chains use trademarks to protect their name and the names of their menu items - if you see TM beside a word or logo on a container, cup or wrapping, you will know that it has been trademarked.
In-N-Out Burgers has 300 restaurants in California, is a globally recognised brand and is the 'restaurant of choice' for celebrities after glamorous affairs such as the Golden Globes after party. Since 2012, it has held pop-up events in Sydney, Melbourne and Perth, which has built upon its social media presence to establish a reputation in Australia. It has trademarked IN-N-OUT, ANIMAL STYLE and PROTEIN STYLE in Australia.
Enter two entrepreneurs who were inspired by an In-N-Out pop-up and branding decided to hold pop-up events and then open permanent restaurants, with the trading name Down N' Out Burgers, with copycat menu items and decor. See the images of the trademarked names.
As you would expect, In-N-Out issued a cease and desist letter, which was mostly ignored.
Last week, the Federal Court found that Down N' Out had acted misleadingly and deceptively, and will order Down N' Out to remove all offending names and decor and pay compensation. The Court relied on the fact that Down N' Out had infringed In-N-Out's trade marks, had been deceptive and was guilty of passing off.
Trademarks are very powerful - infringe them at your peril!