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In-N-Out Burger reaches settlement with former Grab-N-Go restaurant

In-N-Out Burger has settled its federal trademark infringement claims against an Aberdeen hamburger joint that has since rebranded itself.

Postal workers Stephen Penn (left) and J.C. Williams wait to enjoy the fare at Georgia's in Aberdeen, formerly known as Grab-N-Go Burgers. The name change apparently has ended the dispute with the In-N-Out Burger chain.

U.S. District Judge Richard D. Bennett signed a settlement order Tuesday dismissing the lawsuit filed by the Irvine, Calif.-based company in August 2011 against Grab-N-Go Burgers, now called Georgia’s Carryout. The suit claimed Grab-N-Go’s restaurant, in a strip mall on Beards Hill Road, was “clearly modeled” after In-N-Out’s restaurants, and sought a permanent injunction and unspecified damages.

“The name of the restaurant, particularly the use of ‘N’ as short for the word ‘and,’ the menu selection, the red, yellow and white color [logo], and the interior design, including white tile wall with a red stripe, all mirror design elements of In-N-Out restaurants,” In-N-Out said in its suit. “The words Grab-N-Go are depicted in red block letters in a typeface identical to that used in In-N-Out’s trademarked logo. The name Grab-N-Go is also depicted in conjunction with a curved circular design element in the color yellow that is highly similar to In-N-Out’s use of the trademarked phrase ‘In-N-Out’ in conjunction with a bent yellow arrow.”

In-N-Out said the use of “such colorable imitations of the IN-N-OUT’S Marks and trade dress is likely to cause confusion, mistake or deception, as those encountering [Grab-N-Go] may mistakenly assume that [Grab-N-Go] is in some way sponsored, endorsed, approved by, or connected with In-N-Out when in fact it is not.”

In-N-Out also alleged that Grab-N-Go’s “Wild Style Burger,” which features two beef patties, lettuce, tomato, pickle, grilled onions and “wild” sauce was too similar to its “Animal Style” burger. According to In-N-Out’s website, the “Animal Style” burger features a mustard-cooked beef patty with lettuce, tomato, pickle, grilled onions and “extra spread.”

In-N-Out asserted claims of trademark infringement, trademark dress infringement and trademark dilution.

Grab-N-Go denied the allegations in its Sept. 12, 2011, answer to the lawsuit, and said consumers were not likely to be confused and that In-N-Out has not suffered economic damages. The response also stated that In-N-Out has no presence in Aberdeen.

In-N-Out’s nearest restaurant is in Texas.

Nick Batsis, the Aberdeen restaurant’s manager, said in a telephone interview Wednesday that his daughter, Georgia Batsis, purchased the restaurant from Nick and Foula Hapsis, the original owners. The father and daughter opened the restaurant in October 2010.

Batsis said the eatery changed its name a year ago and now serves Greek food, fish and salad. The “Wild Style Burger,” however, remains.

In-N-Out and Grab-N-Go entered into a tentative settlement in January 2012. The settlement was contingent on In-N-Out’s approval of Grab-N-Go’s new logo and the execution of a written agreement, Bennett wrote in a Jan. 4, 2012, order dismissing the lawsuit.

The judge said In-N-Out could move to reopen the case if the settlement agreement had not been finalized within 45 days, and on Feb. 24, 2012, In-N-Out filed a motion to reopen the case.

“Good cause exists to reopen this case because … Grab-N-Go Burgers has failed to submit a new logo for final approval by Plaintiff or to execute a final, written settlement agreement,” attorneys for In-N-Out said. “Despite numerous efforts by counsel for Plaintiff to obtain a full, final and approved settlement, and despite Plaintiff’s willingness to consent to an extension of the deadline for settlement … Defendant has failed to meet the contingencies set forth in the parties’ … Notice of Settlement … and this court’s dismissal order.”

On March 2, 2012, Bennett issued an order reopening the case because the parties failed to enter into a settlement. In-N-Out notified Bennett on Feb. 21, 2013, that the parties had reached a settlement.

Arnie Wensinger, In-N-Out’s vice president and general counsel, and Joshua A. Glikin, an attorney at Bowie & Jensen LLC in Towson, who represented In-N-Out, were not available for comment Wednesday.

Edward Pennington, an attorney with Murphy & King P.C. in Washington, represented Grab-N-Go. Pennington did not return calls for comment Wednesday.

In-N-Out has close to 300 restaurants in five states, the majority of which are in California; it also has locations in Texas, Utah, Nevada and Arizona. Even though it does not have any restaurants in Maryland, the chain sold nearly $30,000 in merchandise to Maryland residents from its online retail store from 2008 to August 2012, according to the original lawsuit.

IN-N-OUT BURGER V. GRAB-N-GO BURGERS

Court:

U.S. District Court, Baltimore

Case No:

1:11-cv-02296-RDB

Judge:

Richard D. Bennett

Outcome:

Parties entered into a settlement in February. Grab-N-Go changed its name to Georgia’s Carryout.

Dates:

Suit filed: Aug. 17, 2011.

Order dismissing the case filed: Jan. 4, 2012.

Motion to reopen the case filed: Feb. 24, 2012.

Settlement order: April 16, 2013

Plaintiff’s attorney:

Joshua A. Glikin, Bowie & Jensen LLC in Towson.

Defendant’s attorney:

Edward Pennington, Murphy & King P.C. in Washington.

Counts:

Trademark infringement, trademark dress infringement and trademark dilution.