Japanese Media Spots The Trick After Latest In-N-Out Trademark Tourism Popup
from the eureka! dept
Finally! We’ve been covering famed burger chain In-N-Out’s longstanding bullshit tactic for retaining trademark rights all over the world by standing up popup locations briefly once every couple of years just to satisfy the requirements to use the mark in commerce. What is far too common in the coverage about lawsuits or threats of suits that the chain has lobbed at international businesses it feels are infringing on those mostly unused trademarks is any recognition in the press that this is pure trademark tourism. In fact, in many cases, the press coverage will include speculation about whether all of this means that In-N-Out is finally going international.
But In-N-Out’s latest international popup was so absurdly brief in its appearance that the Japanese press appears to have caught the plot.
On June 7, Californian burgers briefly interrupted the Tokyo workday. The culty American chain In-N-Out landed in Ebisu for a pop-up that lasted four hours. A reported 1,000 people turned up for the limited menu of just three items. And as quickly as it came, it went, leaving a wake of people on social media distraught that they hadn’t gotten the memo in time.
Yup, 3 menu items were on offer over the course of four hours to serve roughly a thousand patrons. I’ll give In-N-Out this much credit: it’s not even trying to pretend that this is about doing any real business in Japan. Separately, while the company declined to comment on whether the popup was designed purely to retain several trademarks the company has in Japan, that didn’t stop The Japan Times from filling in the blanks for its readers.
In 2017, trademark lawyer Chris Maher, then working for legal firm King & Wood Mallesons, wrote about the company, noting that in Australia, trademarks can be challenged and revoked if the registrants don’t show activity in the country for three years. He argued that In-N-Out’s pop-up tactic would qualify as an activity that would let it protect its trademark, but that it would have to keep coming back every few years — which is exactly what it has done.
Maher points out in an email that the three-item menu served in Ebisu directly reflects the company’s trademark portfolio. Fries aren’t registered, and fries weren’t served; neither were three- or four-patty burgers, or grilled cheese.
So, no, In-N-Out is not expanding to Japan. Or Australia. Or Canada. Or South Korea. Or, hell, the East Coast of the United States. It will visit those places now and then purely to retain its trademarks, like that one family member who needs to come visit for a week every couple of years to get back on their feet after losing their job yet again, but that’s about it.
Comments on “Japanese Media Spots The Trick After Latest In-N-Out Trademark Tourism Popup”
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Axe to grind
What axe does Techdirt have to grind with IN-N-Out? why do you have a problem with a company not wanting some scammer to use their world recognizable name that they spent decades making into a household name.
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Why do you want the world to reward dishonest people/companies?
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They are a household name like Tower of God is a household name: very popular in its home and among a niche fan-base elsewhere, almost entirely unknown otherwise.
And the thing about fandom… they really can’t be tricked about what is or is not canon.
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It’s worse than that, because “Tower of God” doesn’t refer to any generic thing I’m aware of. But “In-N-Out” is a representation of “In-’n’-Out” (with apostrophes removed as companies are wont to do), itself short for “in-and-out”: an ordinary phrase, suggesting speed, that one might wish to use in commerce.
Giving some company exclusive national rights to that term in exchange for four hours of work, every several years, does not seem like a reasonable trade.
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techdirt grinds axes against companies that try to protect trademarks in countries that they don’t do business in. that isn’t the purpose of trademarks and techdirt has been pretty consistent about that, regardless what company is being shitty. in-and-out shouldn’t take it personally.
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If they wanted to defend their fucking trademark, they’d best do the ethical thing and set up shop in the country they’d like to exploit. Or even a tiny ass office in the CBD of said country.
Not relying on trademark tourism.
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Is it really a household name in a country, if all you’re doing is showing up once every few years to serve an infinitesimal fraction of the local population and then fuck off?
As things are, In-n-Out can lose their trademark in Japan and nobody would care aside from In-n-Out for refusing to cater to a market beyond the bare minimum needed to assert their IP. What they are doing now is the equivalent of the company that doesn’t produce printers, but sues small companies caught using a printer that has a “Scan to email PDF” function.
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I’d say… none. TechDirt doesn’t tend to grind axes with companies — they grind axes with behaviors.
In this case, the behavior is doing the bare minimum to retain their trade marks world-wide, even though most people outside of California have never heard of them, and they’re using common phrases as trade names.
Personally, the only way I found out they existed was due to a local pop-up in my country a few years back, which I thought was apropos to the name, as they were in and out before most people knew what was happening.
At first, I thought it was just a local name for a pop-up business (which kind of goes against the whole “preserving branding identity” argument).
And just like with this article, only trade marked products were on the menu, which was really weird for someone selling fast food. Surely you’d sell drinks and fries and desserts, not just a small selection of entrees if you wanted to establish a trade presence in the fast food industry?
Not going to argue with this being a textbook example of trademark tourism. But as any Californian will tell you, their normal menu doesn’t have much more than 3 items. It’s fair to fault them for showing up for a couple of hours once every several years; don’t fault them for the restricted menu.
As for the fries: Speaking as a longtime In-N-Out fan, their fries suck. They probably left those off the menu so as not to cause an international incident.
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So you’re saying that In-N-Out isn’t great at ethnic food? Or should they switch to French Toast, or French Dressing…
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Well, according to comments from an earlier article, apparently, they’re not that good at burgers, either.
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I’ve had a better burger from an am-pm, that’s for sure.
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I will eat at In-N-Out once in a while because the burger is okay. But their name always makes me think of the food going in and then immediately out the other end instead of showing up and getting out quick.
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It’s rather well known that they also have a “secret menu”, which this four-hour pop-up store probably didn’t.
I haver no idea what this company does because i don’t have this “fast food” store in my area. Seems like a sketchy operation.
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I have a few in my local area. It’s not a scam or anything, at least as far as being a fast food restaurant goes. It’s a decent burger joint, nothing amazing, though I do like their animal fries. As another commented, their menu is rather small. It’s basically choose a burger, a double, or a triple, maybe add cheese, get fries and a drink, then a few extras you can add that aren’t listed on the menu.
So I guess by this logic, the “Hulu” trademark is now up for grabs in Canada.
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Depends what the rules are for abandoned marks- there is likely to be a grace period during which it can be revived by the current holder. UK is typically 5 years.
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So about abandoned marks…
I’m in Trouble with Mythbusters™
If you're not doing business there... then you're not doing business there
You’d think this would be a fairly easy loophole to close if there was enough motivation for it.
Something like ‘If the only presence you have in an entire country as a business is for a couple of hours every couple of years then you’re not considered to be doing business in that country.’
As for what it would take set it to something like ‘you must be doing business within a country for at least a quarter of the year to be considered to have a presence in that country with regard to trademark protection’ or some such, no more of this ‘show up for a few hours, sell a handful of items and then bugger off for a few years before doing it again because while you don’t want to actually do business there you’ll be damned if someone else uses your name or a similar one to do so’ abuse of the law.
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Something like requirements to establish residency would suffice: a business location that is occupied more than 6 months per year, though they’d probably need to accommodate seasonal businesses like beach houses, fruit and vegetable stands, etc. Maybe distinguish conducting business operations from merely owning or leasing a property.
If In-n-Out ever seriously thinks about expanding overseas, the number and duration of the pop-ups will drastically increase in the target country. At that point they will be market research sites rather than trademark tourism.
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Remember, it took a long time for judges to confirm to copyright plaintiffs that yes, you have to own the copyright to the thing you’re suing for over copyright infringement.
Praying and paying for loopholes to not be closed is the entirety of the intellectual property playbook.
Gee, even Santa pops up at least once every year.
Has someone called the pope? Feeding a thousand people with only three items, that’s a Jesus level miracle right there.
Like I said
This is just stupidity!they could take in major cash. There’s clearly a want for their offering.
For one day they blew away the biggest most popular chains in the Philippines. They clearly crushed it in Japan once again.
I don’t understand what they are actually afraid of!
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Hard to say really, my best guess would be that they expect that once the novelty wore off local alternatives would dominate the market and they’d be left having put more into setting up shop than they got from it, which doesn’t exactly show much confidence in their own products to say the least.
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Maybe. Didn’t think of that.