In-N-Out Burgers Files Trademark Infringement Lawsuit Against Mr. Bill's In and Out Burgers

I previously wrote about a trademark infringement lawsuit filed by In-N-Out Burgers against a local Las Vegas tire and auto repair shop named In & Out Tire & Auto, Inc. (link here). See In-N-Out Burgers v. In & Out Tire & Auto, Inc., Case No. 2:2007cv01556 (D. Nev.). I was a little critical of In-N-Out’s claims of confusion against a tire shop providing wholly unrelated services.

In-N-Out Burgers filed another trademark infringement lawsuit on Tuesday – but this time, based solely on the named defendant, I think I can side with In-N-Out Burgers.

On December 11, 2007, In-N-Out Burgers filed the lawsuit in the U.S. District Court for the District of New Mexico against Mr. Bill's In and Out Burgers, LMB Enterprises, LLC, William Robertson, and Does 1-9. See In-N-Out Burgers v. Mr. Bill's In and Out Burgers et al, Case No. 2:2007cv01249 (D. N.M.).

I would expect Mr. Bill (after exclaiming “Ohh Nooo!” upon hearing of the suit) to try and argue that the terms “In and Out” are merely descriptive of the manner and expediency in which his fast food take-out services are provided.

This time, however, it would seem that In-N-Out Burgers has the upper hand given the similarity in the marks (the only difference being the name “Bill” in front of Defendant’s mark) and the strong relatedness of the goods and services at issue (selling burgers).