Smashburger® recently started calling one of its hamburgers the TRIPLE DOUBLE.
In-N-Out Burger® and its DOUBLE DOUBLE® burger and TRIPLE TRIPLE® burger have a problem with that.
Waddaya think? Should Smashburger get to keep using TRIPLE DOUBLE?
Hold that thought while I add some more facts.
In-N-Out started using TRIPLE TRIPLE in 1966 (and registered it in 1990). It’s been using DOUBLE DOUBLE since 1963 (and registered it in 1973).
Knowing that its use goes back to before most of us were born probably makes In-N-Out’s case stronger in your mind. Why is that?
Long-time readers will remember that infringement boils down to whether or not the use of the trademark is likely to cause confusion among consumers. How does longevity make confusion more likely?
If a trademark has been in use for a very long time, it comes more easily to mind among more people. You don’t have to stop and think: “Hmm. Where have I heard something like that before?” Instead, you think: “Woah! Doesn’t In-N-Out have a burger called DOUBLE DOUBLE?”
The longevity also makes it seem like Smashburger (a relative newcomer to the burger biz) is using TRIPLE DOUBLE as a way to get people thinking about In-N-Out, rather than as just a catchy burger name they came up with out of the blue. That piggy-backing on someone else’s fame is a big no-no in the world of trademarks.
If you were advising Smashburger, would you tell them to fight or change the burger name?