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The American burger chain smashing up British businesses

A US chain is repeatedly going after newly-opened independent eateries that offer smashed burgers - and continues to pursue owners for vast sums even after the businesses close down. 

June 22 2024, 11.04am

TW: This article mentions debt and suicidal thoughts

Smashburger, an American chain based in Denver, Colorado, has put out at least three small burger restaurants out of business by aggressively pursuing intellectual property claims, the Lead has learned - in addition to Smash and Wings in Bushey, the litigation against whom was reported by The Times last weekend. Some of the proprietors are  still being pursued for considerable sums, despite closing down their businesses. 

The most recent casualty among them is Smashed, a burger and eatery in Preston, which closed doors in early April after trying to reason with the American chain for over eighteen months. 

The first letter arrived in October 2022, says Smashed Preston erstwhile proprietor, Michael Evans.  “We actually just thought it was a joke,” he tells The Lead. “We got a letter about our name, saying we need to change it. We just didn’t take it seriously.” 

“We then had a massive file come to us, with customers on social media, customers outside, saying we’ve replicated their business.” 

Unsurprisingly, Evans, rejects the allegation. “Smashed does not look like a posh McDonald’s - and that’s what they are,” he says. “They’re saying our logo looks like theirs, but their logo looks like Home fucking Bargains.” 

“A smashed burger is a process of cooking, not a brand."

Evans tried to obtain legal advice, but found that fighting the chain in court would cost too much - especially if he lost. But shutting down his business hasn’t stopped the claims. 

“We wrote them an email saying we’ve closed Smashed Preston down. And I don’t know what they want to gain now. The harassment, the bullying. Turning up at my home and at my business. It’s caused a lot of mental health problems, anxiety and depression," Evans says. “They’ve not targeted my limited business, they’ve targeted me personally. If I go to court, and they win, I’d be screwed.”

He is now trying his luck again with a new venture in Preston. The new site will be called All Hopes No Promises - a poignant name, but one which hopefully won’t lead to legal threats.

Personally pursued long after closing business

A year earlier and 300 miles away, in London, another small business came to the attention of the chain. Imran Hussain opened Smash Patties - a takeaway offering both classic and smashed burgers - in an industrial park in Wembley. 

The first letter from Smashburgers arrived within two months “They sent a letter asking for thousands,” says Khan. “They said to change the name but you also owe us all this money. I replied saying the name’s completely different, your toppings are completely different, the only similarity is the method of cooking so there’s not gonna be any confusion.”

The idea of a burger cooked in the smash style was not invented by the Denver chain, which opened its first branch in 2007. The idea of using a flat metal surface to smash down the meat to create a patty crispy on the outside and juicy on the inside can be traced at least 50 years back to Kentucky - or even to Indiana in 1932. 

“The process of 'smashing' the beef chuck patty onto an iron griddle with a heavy skillet is certainly not new, you push down on the patty, squeezing it down until its thin - hence the smash," says Mark Laurie, director of the Nationwide Caterers Association. “It's been a mainstay of the burger revolution led by the street food and food truck sector in the UK for well over a decade; most likely brought here by the meat wagon in the mid to late 2000's. It's definitely how you want your burger cooked as you get a more intense beef taste.” 

Imran tried to challenge Smashburger’s threats, first through solicitors and later representing himself when he could no longer afford professional help. He even applied to trademark a “Smash Patties” logo in 2021 but Smashburger successfully challenged that.

In 2023, the hearing officer ruling on the application noted that the “average consumer is not likely to mistake one [logo] for the other” but refused to grant the trademark. As a result, she ordered Smash Patties to pay the US giant £1,850 in costs.

The 53-year-old says his evidence fell down because “I stupidly didn’t include the date” but remains adamant the decision was unfair. He also continues to argue no-one would ever have confused the two businesses.

Strained marriage and thoughts of suicide

By the time of the trademark ruling, Smash Patties was long closed, with Imran and his business partner each losing £20,000 they had invested to set it up. Imran hoped his dealings with the US giant would be over, as friends advised him the debt would die with the business.

Instead, Khan continues to be pursued for around £30,000.

“I’ve closed down Smash Patties, I’ve closed the company and they’re still after money. They sent a letter to mum’s address and she is elderly so she was quite scared by it. They sent a letter last week saying unless I paid them, they’ll send the bailiffs.

“I’ve lost so much money. I don’t have the money to give them.”

Imran said the experience has affected all aspects of his life, placing strain on his marriage and, at times, left him feeling suicidal as he faced up to financial burden.

"They sent a letter to mum’s address and she is elderly so she was quite scared by it."

I think it just brings you down. It’s all I think about, how am I going to survive. It’s not just the £30,000, it’s what I put into the initial business in London. It’s just been a nightmare.” 

A third business, Howey’s Smashed Burgers at the Colebrook Inn, closed down in 2020. Much like Evans, then manager at the pub, received his cease and desist letter and an order not to use the word ‘smashed’. 

"It's frustrating because I'm not a global chain, [I'm] just trying to make a living and provide the local community with something different and keep staff employed," the manager at the pub, Rob Naylor, told the Plymouth Herald at the time. “A smashed burger is a process of cooking, not a brand."

But, ultimately, Naylor drew the same conclusion as Evans. He couldn’t afford a solicitor and backed down as a result. The renamed Howey’s Burgers is no longer trading. 

"Bully boy tactics" 

“We often see smaller companies try and bring these kinds of US brands to the UK market and the problem is that few of them ever look at the trade mark registry or do a search of what is already taken before they launch their brand, says Elizabeth Ward, founder of Virtuoso Legal. The firm specialises in intellectual property, and represented Smash Patties until their pot of money proved to be smaller than Smashburger’s. 

“Then they get drawn into legal disputes which can be time consuming, costly and complex. The message is to get expert brand advice before launch – this is a job for a legal specialist which we are of course. We live in a global market and ideas move to other countries faster than ever before. 

“However, US corporations are notoriously sensitive about their brands being used without consent, so look before you leap should be the motto.”

The idea that any of these businesses were deliberately trying to impersonate Smashburger feels unlikely - but not as unlikely as an independent business going up against a US corporation who, Ward tells us, can likely “throw resources at the case.”

It is unclear on what principle Smashburgers choose targets for their litigation. Even a cursory glance into Google sees dozens of burger outlets with Smash in their name and even more offering smash burgers - seemingly weakening the chain’s suggestion that the cooking method is particularly associated with their brand. 

“The irony that Smashburger are pressing their competitors as thinly as possible by using a combination of heat and weight is not lost on me,” says Simon Carlo, the Birmingham food blogger behind the MeatandOneVeg review site and podcast. “It’s typical bully boy tactics from a chain with big pockets and has nothing to do with the name. 

“This is about claiming ownership of a style of cooking which existed 90 years before them, one that is now trendy and they want the association and SEO from. It’s pathetic and it’s strangling the very independents that we should be fighting to keep alive right now. “

“I can see why businesses want to protect their brands but to claim to own a cooking technique or dish that you haven't created, because it's a part of your brand seems a bit of a leap," says Laurie, of the Nationwide Caterers Association. “There was a similar situation a few years back over 'Pho', the national dish of Vietnam. I believe the lawyers backed down on that occasion.”

The Lead presented information about the concerns of the businesses affected and the impact this has had on individuals behind those businesses to Smashburger. They declined to comment.