Court Smashes Lanham Act Claim Against Smashburger

Advertising Law

A California federal court recently granted partial summary judgment in favor of In-N-Out Burger on a Lanham Act claim against Smashburger, ruling that one of the challenged advertising claims was literally false.

In-N-Out originally filed a complaint alleging trademark violations against fellow burger chain Smashburger and later amended it to add false advertising counts based on multiple claims using the phrase “Double the Beef.”

Appearing in menus, displays, and advertisements and television commercials, as well as on the Smashburger website and social media accounts, variations on the claim included “Triple the Cheese, Double the Beef,” “Triple the Cheese, Double the Beef in Every Bite,” and “Classic Smash Beef Build with triple the cheese & double the beef in every bite.”

According to Smashburger’s recipe cards, each version of the Triple Double burger has two 2.5-ounce beef patties for a total of 5.0 ounces of beef, while the Classic Smash has a single 5.0-ounce beef patty.

In-N-Out moved for summary judgment on the allegation that “Double the Beef” was literally false, making the advertising deceptive.

U.S. District Judge James V. Selna agreed with respect to one iteration of the claim.

“Smashburger’s use of the slogan ‘Classic Smash Beef build with triple the cheese & double the beef in every bite’ was literally false,” the court wrote. “The evidence demonstrates that the Classic Smash burger is made with one 5.0-ounce beef patty, while the Triple Double burger is made with two 2.5-ounce beef patties. Therefore, the claim that the Triple Double burger contains ‘double the beef’ as compared to the Classic Smash is literally false on its face.”

While Smashburger acknowledged that the Triple Double burger does not contain double the amount of beef contained in the Classic Smash burger, the defendant argued that the claims were ambiguous. For example, the phrase “double the beef in every bite” is literally true compared with any single-patty burger because the Triple Double burger contains two layers of beef, Smashburger told the court.

Not so fast, Judge Selna said. “The phrase ‘double the beef in every bite’ unambiguously refers to the amount of beef in the burger, rather than the number of layers of beef,” he wrote. “Furthermore, Smashburger’s slogan directly compares the amount of beef in the Triple Double burger with the amount of beef in the Classic Smash burger by specifically referencing the Classic Smash product.”

Taking another angle, Smashburger argued that the Triple Double contains double, or more than double, the beef of many other competing fast-food single burgers. “This contention fails because there is no reason to believe customers would understand the ‘double the beef’ claim in reference to competitors’ burgers,” the court said.

However, the ruling wasn’t a total victory for the plaintiff, as the court held that In-N-Out failed to demonstrate it was likely to be injured as a result of the false advertising. Although the plaintiff argued that the two burger chains are direct competitors, Smashburger pointed out “significant differences” between the offerings of the two stores.

While In-N-Out limits its sales to beef hamburgers or cheeseburgers of one size, Smashburger has four types of protein for sale in various sizes of patties. In addition, senior executives at In-N-Out testified that they did not consider any other fast-food restaurants, including Smashburger, to be direct competitors, the court noted.

As for the remaining “double the beef” claims made by Smashburger, Judge Selna found genuine disputes of fact as to their falsity remained. “While ‘double the beef’ unambiguously refers to the amount of beef in the product … the slogans using that claim without a reference to the Classic Smash do not necessarily or unambiguously compare the Triple Double to the Classic Smash, or to any product,” the court wrote. “Therefore, the exact claim made by such advertisements is ambiguous.”

To read the order in In-N-Out Burgers v. Smashburger IP Holder LLC, click here.

Why it matters: Although the court found one of Smashburger’s claims literally false, In-N-Out failed to achieve a full victory, as it lacked evidence that the two parties are direct competitors and that it suffered an injury. The court saved that issue, and consideration of whether the remainder of the challenged claims constitute false advertising, for another day.



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