Sydney burger favourite Down N’ Out has been found to have passed itself off as a famous US chain after a lengthy court battle.
In 2017, American burger giant In-N-Out launched Federal Court proceedings against Australian company Hashtag Burgers, which trades under the Down N’ Out name.
The US business claimed the local chain was trying to “mimic” its business via a trademark infringement, arguing Down N’ Out was using misleading tactics to target Australian consumers.
It also claimed the company was “passing off”, which means a business attempts to imply its wares are sold with the rival’s “endorsement, approval, licence, authority or sponsorship”.
But the Aussie business argued that since In-N-Out “does not conduct its fast-food business in Australia”, it has no interests to protect.
Down N’ Out has expanded with branches in NSW and the Gold Coast. Picture: Joel Carrett/AAPSource:News Corp Australia
Down N’ Out first launched as a pop up in Sydney a year prior, but since then has expanded to open branches in the CBD as well as the suburbs of Penrith, Crows Nest and Ryde, Wollongong and even the Gold Coast.
But this week, Justice Anna Katzmann said the legal case involved “the line between inspiration and appropriation” and that owners Benjamin Kagan and Andrew Saliba had “sailed too close to the wind” regarding the similarities between the two business names and logos.
In a judgment seen by news.com.au, it was argued: “There is a sufficiently close resemblance between the two names to give rise to a real, tangible danger of confusion. Careful analysis is not the measure of the response of the ordinary consumer with an imperfect recollection.”
Justice Katzmann said the legal case involved “the line between inspiration and appropriation”.
