In-N-Out claims Smashburger's "Triple Double" is too similar in name to its own "Double-Double."

By Mike Pomranz
Updated August 30, 2017

California-based In-N-Out certainly didn't invent the idea of tossing more than one patty and slice of cheese between a hamburger bun, but the burger chain with an intense cult following did trademark a couple names for it: The brand trademarked "Double-Double" for its double cheeseburger in 1963 and "Triple Triple" for its triple cheeseburger in 1966. But what about if you have two patties and three slices of cheese? The Colorado-based Smashburger believes this innovation is open territory, and the chain is standing by its new "Triple Double," even in the face of an In-N-Out lawsuit.

On Monday, In-N-Out filed a trademark infringement lawsuit in California District Court claiming that Smashburger's new Triple Double, which launched nationally last month, is too close in name to In-N-Out's numbered burgers. "Smashburger's use of the Triple Double and Smashburger Triple Double marks is likely to confuse and mislead the consuming public, and injure In-N-Out, by causing consumers to believe incorrectly that Smashburger's products originate from or are authorized by In-N-Out," the lawsuit says, according to the OC Register.

But despite this legal action from the notoriously litigious (and often successful) In-N-Out, Smashburger has decided to double down (perhaps even triple double down) on its claim to the Triple Double name. "We wanted to create the best cheeseburger for the next generation of burger lovers … which has really resonated with consumers," Smashburger Co-Founder & Chief Executive Officer Tom Ryan said in an otherwise very terse press release. "Frankly, we are flattered by the attention In-N-Out has given our Smashburger Triple Double. To date, Smashburger's Triple Double is posting double-digit traffic and sales increases for the 10-year-old Smashburger brand. The Triple Double burger is clearly popular with our customers and is not comparable to any In-N-Out menu offering."

Smashburger's choice to hold its ground is an interesting gambit. At just a decade old, but with 370 locations in 38 states and nine countries, Smashburger is young enough to potentially benefit from the publicity yet also large enough to weather a legal battle. Even if In-N-Out were to persevere, Smashburger could walk away from this a winner. However, there are also indications that Smashburger may have the upper hand regardless, seeing as the U.S. Patent and Trademark Office approved Smashburgers application to use the "Triple Double" name last year, according to Nation's Restaurant News. To put it simply, this beef appears far from settled.