Hashtag Burgers Pty Ltd v In-N-Out Burgers, Inc [2020] FCAFC 235 (23 December 2020) (Nicholas, Yates and Burley JJ)


Catchwords:


TRADE MARKS – appeal – deceptive similarity – whether primary judge erred in finding DOWN-N-OUT deceptively similar to IN-N-OUT BURGER – appeal dismissed

TRADE MARKS – cross-appeal from finding that directors not liable as joint tortfeasors with company for trade mark infringement – cross-appeal allowed

CONSUMER LAW – misleading or deceptive conduct – appeal from findings that appellants’ conduct amounted to representation of an association with respondent – appeal dismissed

TORTS – passing off – appeal from finding that appellants’ conduct amounted to passing off – whether necessary for respondent to have a reputation in the form of business and customers in Australia to support claim – appeal dismissed

TORTS – passing off – cross-appeal from finding that directors not liable as joint tortfeasors with company for passing off – cross-appeal allowed