“In this case, In-N-Out is claiming it owns rights in a family of marks which contain numbers—such as “Double Double” and “Triple Triple” but also “2X2” and “4X4”. In-N-Out does not want customers to think that burgers and other food called “Triple Double” or “Smashburger Triple Double” or other confusing number marks are somehow related to In-N-Out or made by In-N-Out, or that there is a connection between In-N-Out and Smashburger.
“This can go either way—it could be argued that people will still just think Smashburger and In-N-Out merged or are in some way related, or that Smashburger is licensed by In-N-Out to use the ‘Triple Double’ mark,” she explained. “At the least, In-N-Out needs to prove there is a likelihood that consumers will be confused—even if there is no evidence that anyone actually was.”
According to Tobin, this involves proof of a set of factors including: Proving “Triple Double” and “Smashburger Triple Double” are too similar to In-N-Out’s family of number marks in the way they look, sound and meaning; that the goods are similar; that the channels of trade through which the parties’ hamburgers are sold is similar and; whether people buying burgers spend a lot of time trying to figure out the maker or source of the burger and would pay careful attention to their purchase.”