Animal-Style v. Cali-Style: The Better Burger Battle

Caliburger-Seattle-03-1024x683By Kelsey O’Neal

Everyone who has been to Southern California has probably seen a bright yellow arrow pointing to the promise of the ultimate meal: a double-double, animal style fries, and a Neapolitan shake. Where does the arrow point? In-N-Out Burger. The company typically stayed within a certain radius of its original store in Baldwin Park, CA, and it wasn’t until 2011 that it opened a restaurant in Texas. In-N-Out has been notoriously slow to expand. So, it must have been a shock for the residents of Shanghai to see animal style burgers in the Jing An Temple District in 2011. However the force behind the new store was not In-N-Out, but rather Caliburger, LLC, a Diamond Bar, CA-based company that trademarked In-N-Out’s menu items in Asia and Eastern Europe. In-N-Out wasted no time; it sued Caliburger in Santa Ana, California. The two companies settled, and the settlement was likely contingent on Caliburger’s willingness to change its menu. (For example, a “double-double” is now a “Cali-double,” and “animal style fries” became “wild fries,” which then morphed into “Cali-style fries.”)

Caliburger escaped the 2011 settlement negotiations relatively unscathed; the settlement required Caliburger to slightly modify the menu item names. In-N-Out looked at the international trademark protection framework to enforce its rights over its trademarked products in China. Under this system, In-N-Out would have two avenues of protection: the Madrid System and the Paris Convention. China is a signatory nation to both. Working in the Madrid System would not be effective because In-N-Out has not registered its trademark within that framework. And, the Paris Convention only provides protections under an international trademark common law claim only if the In-N-Out brand is well known in China; but there is little evidence that it is. Therefore, In-N-Out did not have a strong legal argument against Caliburger in it’s 2012 suit as Caliburger was effectively just an international company and In-N-Out had to rely on international law. This is reflected in the relatively minor changes the 2012 settlement agreement imposed on Caliburger. Then Caliburger cooked up it’s next plan: restaurants in the United States.

This means that In-N-Out’s relatively weak position at the negotiating table could be changing. In September 2015, Caliburger opened its first location in the United States on University Avenue near the University of Washington in Seattle. Caliburger later opened locations in Pasadena, Beverly Hills, and Columbia, MD. The company has not hidden its In-N-Out inspired business model. But, the owners believe that the intellectual property concerns are in the past. Caliburger wants to be more modern; it offers alcohol, locally roasted coffees and ice creams, the ability to order through an app, charging stations for devices, and Minecraft battles against other customers. However, the menu and décor remains strikingly similar to In-N-Out; both companies have palm trees on their cups, and both feature a secret menu with similar items. Given that In-N-Out sued the Maryland based “Grab-N-Go Burger” for trade dress infringement on August 17th, 2011, it seems likely that In-N-Out could file a new lawsuit against Caliburger. (The suit with “Grab-N-Go settled in 2013.)

In the meantime, stop by your local Caliburger, and do some of your own research. You’ll get a good burger that won’t come with the classic In-N-Out bible verse printed on the wrapping. But one thing is certain: with a former IP lawyer at the helm of Caliburger, the ongoing fight with In-N-Out will be fun to watch.

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