In-N-Out Sends Punny Cease And Desist Over Fairly Clear Trademark Infringement

from the not-bad dept

You may have heard the general mantra that “puns are the lowest form of comedy.” Heathens say that, because puns are great and, if I had my way, there would be a legal requirement to use at least one in every legal document this country produces. They can also be used to lighten up what would otherwise be heavy legal actions. Such is the case with In-N-Out Burger, which decided to respond to what is pretty likely trademark infringement with a pun-laden cease and desist.

We’ll start with the product that was likely infringing on In-N-Out’s trademarks, which itself involves some punnery.

The back and forth banter all started on July 12 when Seven Stills took to Instagram and posted a photo of its soon-to-be-released “barrel aged neopolitan milkshake stout.” The beverage’s logo featured In-N-Out’s famous red palm tree lining, arrow logo and the phrase “In-N-Stout Beer.”

In case you’re wondering just how clearly Seven Stills’ use of In-N-Out’s trade dress was, here is the brewery’s own Instagram post.

Barrel aged neopolitan milkshake stout coming soon. @innout

A post shared by Seven Stills of SF (@sevenstills) on

In case you’re somehow unaware of In-N-Out’s log and cup design, the In-N-Stout effort above is a very clear play on it:

So, yeah, despite the two companies being in different markets, this sort of use could still cause some kind of confusion and create an impression of affiliation between the two entities. If you really want to argue any of that, I suppose you can, but this is probably trademark infringement.

In-N-Out, which we have criticized in the past for some dodgy trademark behavior, deserves some credit here instead for firing off a cease and desist that certainly didn’t take itself too seriously.

After In-N-Out caught wind of the idea, its legal team crafted a cease and desist letter jam-packed with puns related to beer making.

“Based on your use of our marks, we felt obligated to hop to action in order to prevent further issues from brewing,” part of the letter read.

The C&D actually had way more puns than just those, however. Given the gentle and congenial nature of the C&D, in fact, Seven Stills made a point to post the entire thing to its Instagram account, as well as agreeing to alter its beer’s trade dress to remove In-N-Out’s branding from the can.

We count 9. Can you find them all?

A post shared by Seven Stills of SF (@sevenstills) on

If you can’t see that, it reads:

Dear Seven Sills Brewery & Distillery,

We at In-N-Out Burgers (“In-N-Out”) received multiple reports of your “In-N-Stout Beer” featured on your social media pages. The In-N-Stout Beer label features In-N-Out’s trademarks including our palm tree and arrow logos along with a substantial similarity to In-N-Out’s brand name. Based on your use of our marks, we felt obligated to hop to action in order to prevent further issues from brewing.

In case you are not already aware, In-N-Out owns multiple trademark registrations in these marks. As you may expect, we tap into a lot of effort in protecting our marks, which includes limiting their use by others.

Please understand that use of our marks by third parties ales us to the extent that this could cause confusion in the marketplace or prevent us from protecting our marks in the future. We hope you can appreciate, however, that we are attempting to clearly distill our rights by crafting an amicable approach with you, rather than barrel through this.

Accordingly, we request that you refrain from further use of In-N-Out’s marks by not selling or promoting items featuring our marks, and removing images of “In-N-Stout” and any other items featuring our marks from your website and social media pages. Please contact us as soon as possible, so this does not continue to ferment. Thank you for your time and consideration, and we look froward to resolving this in good spirits.

The lesson here isn’t that there wasn’t some other way to work this out beyond a cease and desist notice. No, the point here is that trademark issues can reach amicable ends if only companies are congenial with one another… and use as many puns as possible.

Filed Under: , , ,
Companies: in-n-out, seven sills

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Comments on “In-N-Out Sends Punny Cease And Desist Over Fairly Clear Trademark Infringement”

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That Anonymous Coward (profile) says:

Perhaps maybe just maybe corporations are learning that being giant dicks isn’t the best play.

Dilly dilly, we let you do this once but staphhhhh!

The puns in this letter which more than likely resulted in an aneurysm in one of the lawyers brains.

Understanding that your consumers don’t only do business with you but with others & that being a prick over something consumers could see as nod from another fan can result in blowback.

This was handled well, and one would hope the brewer might reach out and ask for permission to do an approved nod moving forward.

Anonymous Coward says:

Re: Techdirt never runs positive stories in favor of IP owners.

you never run positive stories in favor of IP owners.

1) You are accurate for once.

2) This is not "IP", it’s trademark. You’ve been reading here for years and haven’t learned a thing.

3) But you do correctly term them "owners". Therefore you know that piracy is stealing.

4) If you try to argue on points 1-3, you’ll just tangle yourself in further lies, so I advise jump to the only area you’re good at: ad hom.

Stephen T. Stone (profile) says:

Re: Re:

This is not "IP", it’s trademark.

Wikipedia has “trademark” under a specialized “Intellectual property and Intellectual rights law” section.

you do correctly term them "owners"

Inasmuch as the own the government-granted artificial “rights” to their intellectual property? Yes, I do.

Therefore you know that piracy is stealing.

Piracy is copyright infringement. What happened in the case outlined in the article is trademark infringement. While a reasonable (though not altogether insurmountable) case could be made that trademark infringement is a form of theft, the same cannot be said of copyright infringement.

If you try to argue on points 1-3, you’ll just tangle yourself in further lies

First of all, why the hell would I argue against point 1? (I mean, other than that “for once” bit, but given your history here, I can let that slide.) Second, I am more than willing to put up when you ask me to shut up, so I would suggest you find the testicular fortitude necessary to put up a decent argument instead of trying to make me shut up so you can claim a “win”.

I advise jump to the only area you’re good at: ad hom.

Do you have a drive-in screen in your backyard, by any chance?

Anonymous Coward says:

Re: Re: Re: Re:

Inasmuch as the own the government-granted artificial “rights” to their intellectual property?

You have that backwards. There’s no "intellectual property" unless government-granted privileges create it. (We could say the same about "real property", as the native Americans learned.)

Piracy is copyright infringement.

That’s the term some people use. You’re welcome to your opinion about whether copying is akin to violent plundering, but should be aware of the view you’re implicitly promoting.

Cybe R. Wizard (profile) says:

An opun and shutup case? (sorry, sorry ...not)

It’s good tissue a rare but well-done C&D instead of allowing the problem to marinate or dragging them into court and grilling them about it.
I’m sure that the beer company will find a meating of the minds is much better than a burning of the meal ticket.
After all, how does one garnish wages of a whole company?
I think that everyone a grease fire hurts everyone equally!
I think in such a cheesy situation we must let tom pick on may. Otherwise there’s no catch-up. Wheat all grain from it.

James Burkhardt (profile) says:

Re: Re:

That is true. It still, in fact, is in the common lexicon. And Techdirt has previously noted places where In-n-Out (note the use of the ‘n’ in place of ‘and’ to create distinctiveness) overstepped their trademark rights.

In-n-Stout might be confusing but I would not assume an association on the name alone because of the common phrase, but the appropriation of the trade dress (the way the logo is designed, and the distinctive cup design) would make me assume an association between the stout and the fast food chain, as odd as it seems. Because of this, Techdirt has highlighted a genuine trademark concern, and highlighted a decent way of handling things.

That One Guy (profile) says:

Alright, who warped us all to bizzaro world?

Civility among companies rather than furious threats, denials, and then caving only after a protracted legal battle? What madness is this?

Even crazier, it worked, though I’m sure it’s entirely a one in a billion exception, I mean it’s not like this sort of thing could ever work in other instances and put the ‘angry lawyer sending threatening letters’ out of business.

Anonymous Coward says:

Instagram not loading

The Instagram images just show a rounded rectangle with a circle and dot inside, and the links lead to blank pages. Looking at the source I suspect Javascript needs to be enabled.

I still don’t understand why Techdirt does the “here’s the Twitter text in case you can’t see what’s above” thing—where “above” and below have the same text included in Techdirt’s HTML. Something like that would have helped here.

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