In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd (No 2)

In the matter of In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd (No 2), the Federal Court of Australia was tasked with considering the appropriate form of injunctions following findings of trade mark infringement, contraventions of the Australian Consumer Law, and passing off. The respondents, Hashtag Burgers Pty Ltd, Down N Out Burgers Pty Ltd, and Down N Out Restaurants Pty Ltd, sought a stay of the injunctions, orders for delivery-up and destruction of infringing materials, and costs. The court needed to determine whether the grounds of appeal were reasonably arguable, whether the appeal would be rendered nugatory absent a stay, whether the respondents would suffer irreparable harm without a stay, and whether the balance of convenience favoured the prospective appellants.

The court held that the appeal had a reasonably arguable prospect of success given the respondents' submissions regarding the form of the injunctions. Additionally, the appeal would not be rendered nugatory if a stay were not granted. However, the respondents would suffer irreparable harm if the injunctions were not stayed, as they would be unable to continue operating their businesses. While the prospective appellants had not offered security for costs, they had provided undertakings, which the court considered a relevant factor. The court found that the balance of convenience favoured the prospective appellants, as the respondents had already benefitted from the injunctions, and the appellants' businesses would be irreparably harmed if the injunctions were not stayed. Other relevant considerations, such as the public interest in upholding trade mark and consumer law, also favoured granting the stay.

The court granted the stay of the injunctions, pending the determination of the appeal. The court further ordered that the respondents take all necessary steps to cancel or amend the account names and URLs for specified social media accounts within 60 days of the orders. The injunctions to restrain trade mark infringement, Australian Consumer Law contraventions, and passing off were to take effect 60 days from the date of the orders.