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Court settles In-N-Out’s beef with Smashburger

A judge found Smashburger’s marketing of the amount of beef in its Triple Double burger to be “literally false.”
Photograph: Shutterstock

In-N-Out Burgers’ long-standing beef with Smashburger over the Jollibee-owned chain’s marketing of its Triple Double burger came to an apparent conclusion Wednesday, with a California district court declaring the company’s advertising to be “literally false as a matter of law.”

Quick-service chain In-N-Out originally filed suit against fast casual Smashburger in August 2017, asserting that Smashburger’s Triple Double burger infringed on the trademark for In-N-Out’s Double-Double burger. A month later, In-N-Out added a complaint of false advertising to its lawsuit.

At issue was Smashburger’s claim that its Triple Double burger featured a “Classic Smash Beef build with triple the cheese & double the beef in every bite,” according to court documents.

An uncooked patty used in a Classic Smash burger weighs 5 ounces, while the Triple Double burger is made of two 2 ½-ounce beef patties.

“Therefore, the claim that the Triple Double burger contains ‘double the beef’ as compared to the Classic Smash burger is literally false on its face,” the court said.

Smashburger representatives did not respond to a request for comment from Restaurant Business.

Smashburger had claimed that the phrase “double the beef” referred to the number of layers of beef in the sandwich.

Furthermore, the court found that Smashburger’s false claim was material, meaning it would most certainly influence consumer purchasing decisions.

But In-N-Out was not successful in proving that Smashburger is a direct competitor.

“In-N-Out presents no sales or other evidence sufficient to establish injury as a result of Smashburger’s conduct,” the court concluded. “Accordingly, In-N-Out’s motion for summary judgment as to the injury element of its false advertising claim is denied.”

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