Directional Arrow or Trademark Infringment? In-N-Out Burgers v. Pappas Burger

mark November 16, 2011 0

On November 15, 2011, In-N-Out Burger sued the Houston franchise Pappas Burger for trademark infringement in a Texas federal court.  The complaint claims that the Pappas Burger’s sign in the Houston airport (pictured below) infringes In-N-Out’s distinctive boomerang arrow logo (pictured above).  In-N-Out Burger currently has ten locations in Texas, all in the Dallas – Fort Worth area.  All three Pappas Burger locations are in Houston.

In-N-Out’s complaint alleges that,

13.  The use by Defendant of In-N-Out’s mark is likely to cause confusion, mistake or deception, as those encountering Defendant’s signage may mistakenly assume, at least initially, that its restaurant is in some way sponsored, endorsed, approved by or connected with In-N-Out when in fact it is not.

14.  Upon information and belief, Defendant has performed the aforesaid acts with wrongful purposes and knowledge to inappropriately trade upon In-N-Out’s extensive goodwill including using In-N-Out’s mark to draw attention to their restaurant.

While In-N-Out’s logo is certainly distinctive, it seems unlikely that the Pappas Burger sign (which is dominated by the words “Pappas Burger”) would be confused for an In-N-Out Burger (whose sign is dominated by the words “In-N-Out”).

Is it possible that someone looking at the sign from a distance might be confused?  That seems more likely.  The fact that the arrow is yellow, uses similar lights, and has as a slight bend in the middle does not help either.

Prior to this lawsuit being filed, In-N-Out sent letter to Pappas Burger, but could not reach a resolution to the dispute.

Pappas Burger has not yet answered the complaint.  However, my guess is that this case will quickly settle since the directional arrow is only used by Pappas Burger at its Houston airport location (and is not part of the Pappas Burger logo at other locations).

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