In-N-Out Burger, Inc v Rich Asians Pty Ltd [2022] FCA 1573

In-N-Out Burger, Inc v Rich Asians Pty Ltd [2022] FCA 1573

The respondents failed to fulfil undertakings to cease use of specified trade marks and deliver up materials by continuing use in delivery listings and failing to take removal steps; therefore, the applicant was entitled to orders requiring the respondents to comply, and to costs.

Parties
Applicant: In-N-Out Burger, Inc; First Respondent: Rich Asians Pty Ltd; Second Respondent: Puneet Ahori
Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Interlocutory Application / Orders and Reasons for Judgment
Outcome
Application granted. Respondents ordered to comply with undertakings (cease use, removal, delivery up, cancellation of names/listings) and pay costs.
Legal Topics
Trade Marks, Passing Off, Misleading or Deceptive Conduct, Failure to Fulfil Court Undertaking
Intellectual Property Trade Marks Passing Off Misleading or Deceptive Conduct Failure to Fulfil Court Undertaking

Case Brief

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Parties

In-N-Out Burger, Inc

Applicant

Rich Asians Pty Ltd

First Respondent

Puneet Ahori

Second Respondent

Procedural Posture

Interlocutory Application / Orders and Reasons for Judgment

Legal Issues

  1. 1 Whether respondents failed to fulfil undertakings given to the Court under rule 39.21 of the Federal Court Rules 2011 (Cth)
  2. 2 Whether relief should be granted requiring compliance with the undertaking, including ceasing use of certain marks and removal from online listings

Ratio Decidendi

The respondents failed to fulfil undertakings to cease use of specified trade marks and deliver up materials by continuing use in delivery listings and failing to take removal steps; therefore, the applicant was entitled to orders requiring the respondents to comply, and to costs.

Court Disposition

Application granted. Respondents ordered to comply with undertakings (cease use, removal, delivery up, cancellation of names/listings) and pay costs.

Orders

  • Respondents must permanently cease using Aussie Burger Marks in connection with burgers or related services within 30 days.
  • Respondents must not in future use, or direct any third parties to use, the Aussie Burger Marks in connection with burgers or related services.