Sydney burger joint Down N’ Out – which was forced to change its name to Nameless Bar a few months ago – has lost its appeal against American burger chain In-N-Out over the use of the former’s similar name.
Earlier this year, the Federal Court ruled that Down N’ Out’s name crossed the line from inspiration to appropriation of In-N-Out’s name.
Then, in November, Down N’ Out owners Benjamin Kagan and Andrew Saliba tried to appeal the decision, owing to the fact “Down” and “In” are in fact different words.
Now, the Full Court of the Federal Court has doubled down on the original ruling that the name Down N’ Out is “deceptively similar” to In-N-Out, especially when the former is spelled with hyphens, The Sydney Morning Herald reports.
However the judges also conceded Kagan and Saliba’s point that they didn’t act dishonestly when coming up with the name for Down N’ Out. Unluckily for them, this didn’t change the outcome of the case and it wasn’t even overturned.
“The inference that DOWN-N-OUT was chosen by Messrs Kagan and Saliba for the purpose of causing confusion to consumers was based on the evidence available to the primary judge,” the judges said.
Nameless Bar is on Liverpool St in the Sydney CBD, but when it was Down N’ Out it previously had locations in Penrith and Ryde, too.
However the court noted that In-N-Out regularly does pop-ups in Sydney and Melbourne, meaning there is a chance people could get confused between the two.
So it looks like the Down N’ Out name is gone for good. But Australia’s “most infamous burgers” will live on under their new, decidedly nondescript name.
