Smalls Sliders on Monday sued fast-casual competitor Smashburger citing trademark violations.
In a lawsuit filed in the U.S. District Court for the District of Colorado, the Atlanta-based cheeseburger slider specialist argued that the new “S-formative” logo recently adopted by Smashburger in a brand refresh is too similar to the “S” used by Smalls in branding since at least 2019, when the first unit opened.
Smalls also takes issue with Smashburger’s use of the color orange.
The rapidly growing drive-thru slider chain uses orange as a central feature of its units—dubbed “cans”—as well as packaging, interiors and uniforms. In fact, Smalls has a pending application to trademark the term “Smorange,” which is used to highlight the central role the color plays in branding.
The two logos, as presented in the lawsuit.
Denver-based Smashburger, which has about 235 units in 32 states and seven countries, said in a statement that it was aware of the lawsuit and take the allegations seriously.
“Our legal team is reviewing the matter, and while we cannot comment on ongoing litigation, we are committed to protecting our brand and stakeholders,” the company said in a statement.
Smashburger also said the S-logo cited in the lawsuit is not presented accurately. The chain's new logos look more like this.
Smashburger, which is owned by Jollibee Foods Corp., in September unveiled a brand transformation that included a new menu and visual brand identity, which was scheduled to be rolled out systemwide.
The new logos, typefaces and colors were designed to bring to life Smashburger’s “unique and bold personality,” the burger chain said in press materials at the time.
Smashburger's new logo on packaging. | Photo courtesy of Smashburger.
“Our new brand aesthetic is rooted in reconnecting with our roots and creating an identity where our guests truly feel at home, like they’re among friends savoring one of the best foods on the planet: a burger,” said Smashburger CMO Thomas Prather, in a statement.
The chain partnered with branding specialists X&O, which, “allowed us to reinvigorate the brand and restore its distinctive swagger—their expertise helped us infuse Smashburger with fresh energy and bold character, resulting in a revitalized identity that truly reflects our vision and resonates with our guests,” Prather said.
In September, however, Smalls sent a letter demanding that Smashburger cease use of the mark. Smashburger refused, according to the filing. Now Smalls contends it is entitled to injunctive relief and possible damages.
“Protecting the Smalls Sliders brand and our intellectual property is of the utmost importance to us,” Smalls said in a statement. “We remain committed to preserving its integrity.”
Smalls was co-founded by Walk-On’s Sports Bistreaux founder and CEO Brandon Landry. The franchise chain is also backed by Walk-On’s investor and NFL Hall of Famer Drew Brees and 10 Point Capital.
It’s on a growth tear, with 325 units open or under development in 24 states. Currently, 19 are open, mostly across the Southeast.
Smalls Sliders logos in various formats. | Images courtesy of Smalls Sliders.
Trademark attorney Josh Gerben, founding partner of Gerben Perrott PLLC in Washington, D.C.—who has no connection to the case—said such lawsuits typically follow a period of negotiation that has broken down. Often, going to court can be a tactic to force a settlement.
But that approach can also be costly because most trademark cases are not taken on contingency, like other types of lawsuits, and plaintiffs are likely paying thousands out of pocket.
Smalls could also seek a preliminary injunction to stop Smashburger from using the new logo until the case goes to trial or is settled. As of Tuesday, that hasn’t happened.
“When you talk about litigation, there’s the legal side and the practical side,” said Gerben. “If it makes its way to trial, there’s certainly a good chance Smalls could prevail. When you look at [the logos] in isolation, they do look similar.”
Color, however, is a more difficult thing to protect under trademark law, he noted. “There has to be deep penetration [of a color] in the minds of consumers.”
UPDATE: This article has been updated to clarify how Smalls Sliders was founded, and to show Smashburger logos.
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