LOS ANGELES – In a suit brought by Pillsbury client In-N-Out Burgers, U.S. District Court Judge James Selna ruled that Smashburger’s advertisements describing its “Triple Double” burgers as a “Classic Smash Beef build with triple the cheese & double the beef in every bite” are literally false.

“The evidence demonstrates that the Classic Smash burger is made with one 5.0-ounce beef patty, while the Triple Double burger is made with two 2.5-ounce beef patties,” the judge said. “Therefore, the claim that the Triple Double burger contains ‘double the beef’ compared to the Classic Smash burger is literally false on its face.”

In-N-Out sued Smashburger in August 2017, alleging the “Triple Double” sandwich infringed its “Double Double” trademark, among others. In September 2018, In-N-Out filed an amended complaint adding a claim of false advertising.

Early last month, In-N-Out filed a motion for partial summary judgment, asking the court to rule that Smashburger’s use of the “double the beef” slogans was false and deceptive, that the deception was likely to have influenced customers’ purchasing decisions, and that In-N-Out had been harmed by this activity.

In-N-Out is represented by Intellectual Property partner Carolyn S. Toto, senior counsel Jeffrey D. Wexler, senior associate Sarkis A. Khachatryan and associate Michael R. Kreiner, all in Los Angeles.