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Got an urge for a “sizzling” burger?

Got an urge for a “sizzling” burger?

25 Jun 2020

Got an urge for a “sizzling” burger?
WRITTEN BY
Louise Blair
Louise Blair
Associate

Got an urge for a “sizzling” burger?

25 Jun 2020

More food fights!  This time it’s sizzling burger wars. 

Remember the US all-you -can-eat restaurant chain Sizzler which was hot in Australia in the 1980s and 1990s?  It still exists in Australia and has taken Australian company, Burger Urge Pty Ltd to the Federal Court for trade mark infringement.

Sizzler Restaurant Group Pty Ltd prides itself on its signature “cheese toast product”.  It owns a suite of trade marks, one of which is SIZZLER (TM No. 414008) which covers all goods in class 30, including “toast”.  This trade mark was registered in 1984.

Burger Urge is a premium fast-food chain started by Sean and Colby Carthew in 2007.  Recently they added a new fried chicken burger on cheese bread to their menu, originally called “The Sizzler”. 

This fired up the crackle, hiss and spit of Sizzler which promptly issued a cease-and-desist notice to Burger Urge stating that Burger Urge had infringed their trade mark rights.  The letter claimed the burger which uses a “cheese bread product”, was similar to the trade marked “cheese toast” which is a Sizzler signature dish.  Sizzler asserted that the use of “cheese bread” in association with the Sizzler trade mark increases the likelihood of confusion arising amongst customers.  A sticky situation indeed.

Burger Urge continued to sell the burger but felt the urge to change the name of the burger to the Sizzle.  Posts on social media promoted the product as a tribute to the iconic well-known Sizzler chain.  Burger Urge’s Facebook page said scathingly that it “didn’t think there were any Sizzlers left” in Australia.

Obviously, Burger Urge’s burning irreverent tone was reconsidered and extinguished somewhat and posts referring to the Sizzler burger and the Sizzler chain were removed from social media.

In any event, the messy food fight has begun.  Sizzler commenced proceedings in the Federal Court.  As at 23 June 2020 the Court has restrained Burger Urge from using any of the following marks or logos on or in relation to any food item including, without limitation, any chicken burger or sandwich on cheese bread or any other cheese bread product:

Sizzler-image-(1).png

Watch this space as the gooey, cheesy, burger battle continues.  It seems burger dramas are almost prevalent.  Read another burger themed article I published recently here
 
Our take-away

A registered trade mark provides you with rights which are enforceable under the Trade Marks Act.  Once registered it can be renewed every 10 years in perpetuity.  So whether your trade mark is old or new, it provides:

  • the exclusive legal right to use, licence and sell your mark in Australia;
  • protection of the identity of your goods and services, and prevents others from imitating your brand;
  • legal protection and enables you to stop others trading with it;
  • rights of enforcement against other traders who use a mark deceptively similar to yours.
The simple ingredient in a messy fight can be your registered trade mark.
 
If you are interested in protecting specialist or specific branding (online or traditional) with a registered trade mark, you can get in contact with our team by email on ip@ablawyers.com.au or call 1300 565 846.

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