In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd [2020] FCA 193

FEDERAL COURT OF AUSTRALIA

In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd [2020] FCA 193 File number: NSD 1746 of 2017

Judge: KATZMANN J

Date of judgment: 26 February 2020

Catchwords: INTELLECTUAL PROPERTY— Trade marks — infringement — deceptive similarity — where marks used in relation to goods and services of the same description consist of a combination of words, two of which are identical, or that word combination with additional features some of which are similar — whether respective marks resemble each other — whether real or tangible danger that similarities in marks could deceive or cause confusion — where no evidence given by respondents on intention, whether inference from other evidence such as to call for an explanation — consequences of absence of explanation CONSUMER LAW — Misleading or deceptive conduct — use of allegedly similar business names and trade marks in relation to the sale of fast food items and burgers in particular — where applicant a foreign company with no fixed or permanent business in Australia, whether applicant had or has a reputation in Australia — whether respondents intended to mislead or deceive consumers — whether respondents' mark or marks adopted for the purpose of appropriating the reputation of the applicant — where no relationship between applicant and respondent and use of marks by respondent not authorised by applicant, whether respondents represented by the use of its trade names that their goods and/or services were provided by or associated with applicant or provided with the endorsement, approval, licence, authority or sponsorship of applicant TORTS — Passing-off — where applicant a foreign company, whether applicant had or has a reputation in Australia — whether respondents represented that their business was the applicant's or was endorsed by or had an association with the applicant — whether likelihood of damage PRACTICE AND PROCEDURE — application for suppression or non-publication order — confidential commercially sensitive information — whether order necessary to prevent prejudice to proper administration of justice — appropriate duration of order