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Down N'Out burgers on red tray
Photograph: Supplied

Down 'N Out Burgers has lost its trademark battle with American chain In-and-Out

Renamed Nameless Bar, the owners intend to appeal the decision

Written by
Maxim Boon

A rose by any other name would smell as sweet, so the Bard tells us. However, what is true for flowers doesn’t necessarily follow for burgers, at least as far as the artists formerly known as Down ‘N Out would have you believe.

For four and a half years, the scrappy Aussie burger joint in Central Sydney has been in a David vs Goliath legal battle with American fast food juggernaut In-N-Out over what the US company claims is an infringement of its trademarked brand.

Justice Anna Katzmann ruled that Down ‘N Out’s choice of name and logo were so “deceptively similar… that they nearly resemble the applicant’s”, adding that such a clear similarity was “likely to cause confusion” for patrons who might incorrectly believe they’re eating at an Aussie branch of the popular American chain.

As a result of the unfavourable outcome of the case, owners Ben Kagan and Andrew Saliba have been forced to remove Down ‘N Out branding from its business wherever it appears, including on menus, staff T-shirts and packaging. But proving somewhat ironically that they are down but not out, the rebrand of the restaurant is still surfing the wave of publicity this very public legal tussle has thrown up. Now called Nameless Bar, Kagan and Saliba say they intend to appeal the decision and, should this prove successful, a re-rebrand back to Down ‘N Out would be on the cards.

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