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In-N-Out vs.…Who Again?

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If you’ve ever had an In-N-Out Burger—or even if you haven’t—you likely know the chain quite well. They’ve been much-beloved in California for decades, and have, over the years, expanded into 5 states with hundreds of restaurants. The chain is iconic—from the simplicity of its menu to the throw-back décor and amazing service, no one would confuse In-N-Out for just another fast-food burger chain.

In-N-Out LogoOr would they? In-N-Out apparently thinks so, or at least thinks there’s a danger of such confusion—and it’s taking its concerns to court in a case against Grab-N-Go Burger, a Maryland establishment. Grab-N-Go’s name, logo, menu design and offerings apparently have In-N-Out worried about a “likelihood of consumer confusion”—the touchstone of trademark infringement suits, one of which In-N-Out has recently filed against Grab-N-Go.

The facts are these: In-N-Out has a well-known logo—the company’s name in white on a red sign that more or less bisects a yellow arrow, which itself hooks overtop of the red sign. There is a slightly variant print logo as well, with red lettering. In fact, there’s no real need for that description—most everyone knows it and probably pictures it immediately on the mention of the words “In-N-Out.” Either that or they picture an “Animal Style” burger, or a “3×3” (that’s this writer’s mental picture, even as I write this). Whatever the mental image, people have deep, personal gastronomic associations with In-N-Out—at least most people, and nearly all Californian carnivores. (In-N-Out also has an excellent grilled cheese, for the non-meatatarians among us.)

Grab-N-Go LogoGrab-N-Go Burger’s logo is, to be fair, similar in some ways. And maybe the menus are…well, they have the same colors, anyway. But confusingly similar? Really? Even assuming that Grab-N-Go is attempting to trade on some of In-N-Out’s presentation, goodwill and customer base—intent is not an element of a trademark infringement claim, so Grab-N-Go’s desire to be like In-N-Out (assuming such a desire exists, and who can blame them?) is immaterial. What matters is whether a consumer would be likely to be confused. And, at least with a core sample of one, it seems, to paraphrase the relevant laws, unlikely. In fact, once one has an In-N-Out outing on the brain, it’s hard to remember what the fuss was even about.

But In-N-Out has a litigious history—they’ve sued numerous restaurants for what In-N-Out perceives as treading too close to its turf. Whattaburger—a Texas chain—offered a “Double-Double,” and got sued for it. (Whattweretheythinking is more like it—a “Double-Double” is an In-N-Out icon.) Similarly, Chadders in Utah felt the wrath of In-N-Out for offering an “Animal-Style” burger. In both cases, In-N-Out carried the day. However, it must be noted that both of these suits involved defendant restaurants in states where In-N-Out has a presence. Not so Grab-N-Go, which does business only in Maryland—a state not occupied by In-N-Out, at least not yet. One factor considered in trademark litigation is the geographic areas served by the competing parties, and here this factor could weigh in Grab-N-Go’s favor.

It’s silly to make predictions where litigation is concerned—especially in an area as potentially subjective as whether a “likelihood of confusion” exists. But go ahead: reply here and make yours. I’ll respond as soon as I’m back from lunch: 3×3, no onions. And no, I’m not in Maryland, so you know where I’ll be getting it.

<a href="" title="In-N-Out is suing Maryland's Grab-N-Go burger for trademark infringement. Is Grab-N-Go an In-N-Out copycat?">In-N-Out is suing Maryland&#8217;s Grab-N-Go burger for trademark infringement. Is Grab-N-Go an In-N-Out copycat?</a>
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August 29th, 2011 at 6:33 am