The parent of the Carl's Jr. fast-food chain has lost the opening round in its deceptive advertising case against a competitor who suggested the Angus beef in its burgers comes from an unappetizing part of the cow's anatomy.

U.S. District Judge Andrew J. Guilford in Los Angeles denied CKE Restaurants' motion for an order enjoining Jack in the Box from airing two television commercials promoting its rival “100% Sirloin Burger,” saying there was no evidence they misled consumers as to the physical origin of Angus beef.

In one of the ads set in a Jack in a Box conference room, the company's clown-faced "Jack" mascot uses a diagram of a cow to point to the area which the sirloin cut comes from. When an employee asks him to identify “the Angus area,” Jack glances at the animal's rear end and replies sheepishly, “I'd rather not.”

CKE argued that the ads “create the false impression that the meat used in 100% Angus Beef Hamburgers comes from the rear end and/or anus of beef cattle by creating phonetic and aural confusion between the words 'Angus' and 'anus.'”

According to a survey commissioned by the company, a “statistically significant” number of consumers were misled by the commercials. And CKE's chief executive claims customers have actually asked why it charges $6 for a burger made from a cow's rear end.

But Guilford -- noting the “often aggressive and sometimes amusing advertising campaigns for fast food, which might be called the Burger Battles” -- found CKE had no beef deserving of injunctive relief.

“Plaintiffs' survey uses leading and suggestive questions,” he said in his order, and the “deficiencies in the survey's design weaken the relevance and credibility of the survey evidence to the point where it sheds little if any light on the issue of likelihood of deceiving consumers.”

The judge also said the survey “establishes that consumers are not as unsophisticated and gullible as Plaintiffs suggest. While Plaintiffs' survey indicates that 17% of consumers were less likely to buy hamburgers made with Angus beef, the survey also revealed that 14% of consumers were more likely to buy hamburgers made with Angus beef.”

Elsewhere in the Burger Battles, a Utah judge issued a temporary order restraining a restaurant from offering several off-menu items trademarked by In-N-Out Burgers. In-N-Out sued Chadder's of American Fork, Utah, after its general counsel visited the restaurant and had his order for an off-menu “Animal Style Double Double with Animal fries” filled.

“In-N-Out has shown that ... Chadders has used at least one of the trademarks on at least one occasion after Chadders says that it instructed its employees not to use them, and that there is likely to be consumer confusion as to the source of the products,” U.S. District Judge Ted Stewart said in his order.

By Matthew Heller
9/5/07