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By Ray Stern
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By Stephen Lemons
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In-N-Out Burger has been open in north Scottsdale for two months, and it's still an hourlong wait for the fast-food chain's popular Double Double -- two meat patties and two slices of American cheese.
But long lines aren't the only concern at In-N-Out these days. The company says its trademark sandwich -- or at least the burger's name -- is being ripped off by rival Whataburger.
Now the beef with Whataburger has escalated into a federal case. In a lawsuit filed in U.S. District Court in Phoenix earlier this month, In-N-Out accuses Whataburger of violating the Federal Trademark Act for using the words "Double Double," or variations of the words, on its menus and on its corporate Web site.
In-N-Out says this has created "customer confusion" in the fast-food market, according to the lawsuit.
Arnold Wensinger, In-N-Out general counsel, says the Irvine, California-based company, founded in 1948, has used the Double Double name since 1963. The name was registered with the United States Patent and Trademark Office in 1981. In 1997, the company registered the Spanish translation -- Doble Doble.
Wensinger doesn't know how long or to what extent Whataburger has used the words, but says the Texas company, which has been around nearly as long, since 1950, admits that its customers regularly use "Double Double" to order in its restaurants. In-N-Out operates in California, Nevada and Arizona; Whataburgers are located in Texas, New Mexico, Arizona and much of the South.
Timothy Taft, Whataburger Inc.'s senior vice president of marketing and sales, says the company didn't even know In-N-Out had filed suit. "And, even if we did, it is our policy not to talk about any impending litigation," Taft says.
But Wensinger says lawyers for both In-N-Out and Whataburger are currently in negotiations to settle the case.
The lawsuit contends that Whataburger's use of the sandwich's name has "diminished and devalued the worth of the 'Double Double' mark and In-N-Out's business reputation and goodwill with the public."
That doesn't seem to be the case in north Scottsdale, where people are still often waiting more than an hour to get a taste of what some would call the almost mystical Southern California fast-food cuisine.
A second In-N-Out opened about three weeks ago in Avondale, and the lines there have also been out the door. Moreover, In-N-Out chooses not to list its local phone number with directory assistance, which would also seem to make it hard for customers to find the restaurant.
This isn't the first time the two burger barons have battled over the Double Double designation. In February, the companies entered a settlement agreement that barred Whataburger from continued use of the Double Double name in Texas, California and other areas, according to documents on file in the Phoenix case.
However, In-N-Out thinks Whataburger has violated the agreement; Wensinger won't specify exactly when or how the company figured that out.
In-N-Out wants at least $75,000 in damages, the lawsuit says. Wensinger would not say how the company arrived at that figure.
In-N-Out is also seeking reimbursement of legal fees and other costs, as well as a court order barring Whataburger from calling its sandwiches Double Double.
Jordan Meschkow, a Phoenix attorney specializing in patent, trademark and copyright cases, says companies sometimes call in an economist to determine damages based on sales and forecasts.
This trademark-infringement case is not a rarity in the fast-food industry. In June, Burger King won an infringement suit filed by McDonald's, which claimed that a Burger King logo used to advertise its Big Kid's Meals was strikingly similar to one used by McDonald's a year earlier.
In July, Chick-Fil-A filed a suit against Burger King. The chicken chain said that a Burger King promotion using chickens from the movie Chicken Run -- holding signs that said "Save the Chickens: Eat a Whopper" -- was too similar to Chick-fil-A ads that feature cows holding misspelled signs that read "Eat Mor Chikin."
McDonald's files suit against anyone who uses the "Mc" prefix, Meschkow says.
In-N-Out and Whataburger are small fry compared to fast-food giants McDonald's and Burger King, which have thousands of restaurants worldwide. In-N-Out operates 148 restaurants; Whataburger has just over 500.