In-N-Out Burger suing for trademark infringement over food delivery ‘ghost kitchens’

US burger giant In-N-Out has accused an Australian business of engaging in misleading or deceptive conduct and trademark infringement by selling burgers and fries on three delivery services as “In & Out Aussie Burgers”.

The burger chain is suing Rich Asians Pty Ltd and businessman Puneet Ahori in the Federal Court, alleging the operator passed itself off as In-N-Out when it sold food on Uber Eats, DoorDash and Menulog in at least four locations in Queensland.

In & Out Aussie Burgers is being sued by US burger chain In-N-Out in the Federal Court.Credit:Instagram/@inandoutaussieburgers

The restaurants in Chermside, Zillmere, Balmoral and Morayfield operate as “dark kitchens”, meaning they cook food primarily for food delivery apps and do not have the option to dine in.

On Wednesday, Barrister Megan Evetts – appearing for the American burger chain – said the Australian restaurants initially used the name “In-N-Out Aussie Burgers”, but when a cease and desist letter was sent the first part of the name was changed to “In & Out”.

She said the delivery listings previously used an “exact copy” of the American In-N-Out logo, and that had now been changed to a logo which still includes an arrow.

Ms Evetts said the slight name change is insufficient to distinguish from the American chain, and it will still be argued the operators engaged in trademark infringement, passing off, and misleading and deceptive conduct.

American burger chain In-N-Out.Credit:Bloomberg

She said there are already instances of customers confusing the two entities, and the Queensland In & Out had received negative reviews which associated them with the American chain.

In-N-Out is seeking to restrain Rich Asians and Mr Ahori from using any version of the In-N-Out name, as well as damages, and a declaration that the use of the name contravened Australian Consumer Law.

Mr Ahori, who was given leave to represent himself and the Rich Asians business on Wednesday, told the court he cannot afford a lawyer.

“I want a remedy, I want a solution where I can obviously operate,” Mr Ahori said.

He said it was untrue that he was using the In & Out name to try to confuse people, and said he had made a public statement to say he was not associated with the American In-N-Out.

“I don’t agree it’s the same name at all,” Mr Ahori said.

“My logo is ‘In & Out Aussie Burgers’ … I’m a small operator in Queensland, and they’re basically pressuring me to de-register all the names I have.”

He said the In & Out name was actually used at five locations, not four as In-N-Out’s lawyers suggested, and the locations were not owned by him.

“I’m basically helping – the people are struggling in the restaurant industry, so they’re not my locations, basically,” he said.

“They only operate online, not in-store at all, not even the one location. Basically it’s a ghost kitchen, where we’re operating on Uber, Menulog and DoorDash.”

Justice Stephen Burley said Mr Ahori will almost certainly benefit from legal advice, because the case involves “technical areas of law”.

Mr Ahori said he is not a lawyer and will do his best to research how to prepare a defence in the case before it is due to be filed in two weeks.

The parties were ordered to engage in mediation to see if the dispute can be resolved before costs start to accrue. If the mediation is unsuccessful, they will return to court in September.

The case is the second time In-N-Out has sued an Australian business for using a similar name. It successfully sued Sydney burger chain Down N Out last year, after Justice Anna Katzmann found Down N Out had “sailed too close to the wind” and passed itself off as In-N-Out.

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