5 June 2020TrademarksRory O'Neill

In-N-Out wins injunction against Australian imitator

US burger chain  In-N-Out today, June 5 secured an injunction at the  Federal Court of Australia against two local businessmen who infringed its trademarks.

Locals Benjamin Kagan and Andrew Saliba, “inspired by the popularity and success” of In-N-Out, deliberately tried to mislead consumers with the name of their business, concluded Justice Anna Katzman.

Katzmann had previously rejected an application by the two to stay an injunction pending an appeal which they said had a “reasonable chance of success”.

But the judge noted that the pair had continued their infringing activity since her original verdict, declaring “this unlawful conduct has gone on long enough .. the game really is finally up”.

Katzmann has now finalised the terms of the injunction in favour of In-N-Out. It includes ancillary orders requiring Kagan and Saliba to remove all Down-N-Out branding from their website and social media pages, including the URLs.

The duo had argued that the ancillary orders were “redundant”, but Katzmann disagreed: “Having regard to their past conduct, however, there is reason to think that, without them, the respondents might not take such steps.”

Saliba also provided an itemised list to the court detailing costs of up to A$61,000 ($42,405) should they be required to comply with the injunction before an appeal was heard.

But Katzmann said these figures were “inflated, in some cases considerably so”. Saliba had quoted up to A$10,000 to create new logos for the company’s social media accounts, but the judge noted that they had not produced any invoices from their graphic designer.

“There being no evidence that these invoices have been lost or destroyed, I infer that the respondents’ failure to rely on them means that the invoices would not assist their application,” the judge wrote.

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