In-N-Out Bullies Local Sports Bar Into Poke-N-The-Eye Menu Item Name Changes

We’ve talked a great deal about the trademark adventurism of famed burger chain In-N-Out. While In-N-Out has shown itself to be a happy trademark bully in several ways, most of our posts on the company have to do with the trademark tourism it engages in. This is the process by which the company puts up a popup restaurant once every couple of years in countries where it otherwise has no presence, purely so that it can retain registered trademarks in those countries to keep anyone else from using a similar name.

This isn’t one of those cases. Instead, this is more of the straight up trademark bullying scenario, in which In-N-Out wields questionable trademarks to bully other local businesses out of using the same or similar terms to what is trademarked. Fair Play is the name of a sports bar in San Diego and it had on its menu two items: “Animal Fries” and a “Double-Double.” Both are trademarked terms owned by In-N-Out, with the former being for fries topped by cheese, onions, and dressing, while the latter is for a burger that has 2 patties and two slices of cheese. “Animal Fries” is a term that is at least somewhat fanciful, though I would argue it is still very simplistic. “Double-Double,” on the other hand, is at least partially descriptive, as it refers to the number of two ingredients in the burger.

Regardless, Fair Play received a cease and desist notice from In-N-Out and reacted roughly as you would expect. First came the irritation over having received the notice in the first place:

‘Cease & Desist what you’re doing right now, you’ve gotta see this,’ Fairplay wrote in a social media post on National Cheeseburger Day along with a photo of the redacted letter. ‘We’ve officially been recognized by Big Burger!’ 

In the letter, the chain reminded Fairplay that it owned ‘multiple federal and state registrations’ for the use of the words ‘animal’ and ‘double-double’ in relation to ‘burgers and restaurant services.’ 

Note that In-N-Out somehow got the USPTO to grant it a trademark for restaurant services for the single term “animal”. That’s fairly odd, considering part of what In-N-Out is selling is cooked, well, animal. That sure seems entirely too generic to be deserving of a trademark.

But thanks to the USPTO granting that and the arguably descriptive “double-double” mark, In-N-Out is able to bully smaller entities in this way. And since trademark bullying tends to work due to the mismatch in legal war chests, Fair Play has agreed to change the names of these two menu items. Although perhaps not in the way that In-N-Out would have wanted.

In compliance with the letter, the restaurant did change the name of the menu items, but not before poking fun at In-N-Out’s non-trademarked phrases, including renaming their animal fries to ‘Secret Menu Fries,’ which retail for $12 and $28, depending on size. 

They renamed the sandwich to ‘Burger Burger,’ which costs $16, according to its new menu. 

“Burger Burger” is just inherently funny, but the real prize goes to “Secret Menu Fries.” In-N-Out is quite famous for having it’s absolutely not secret “secret menu” where you can order items that aren’t listed out for you. In fact, In-N-Out has some measure of fame for this practice. But it doesn’t have a trademark on the term, because that would be plainly too generic and/or descriptive to be deserving of a mark. And so now we have “Secret Menu Fries” at Fair Play as a result.

Look, it’s nice to see victims of trademark bullying having some fun with all of this, but in the end this is all still very annoying. Nobody is walking into Fair Play thinking that the double-double that was on the menu somehow meant there was some affiliation with In-N-Out. And the point of trademark law is to avoid that very sort of confusion.

Which means in this case that In-N-Out, once again, is just being a trademark bully.