August 21, 2018
Beer Branding, In-N-Out Burger & The Legal Battle That Wasn’t
Lawyers for In-N-Out Burger sent a cease-and-desist letter to a California craft brewer over In-N-Out-inspired branding that the sudsmaker used on the can of a special edition stout.
If you’re familiar with In-N-Out Burger, the above image might have you wondering if the popular fast-food chain brewed its own beer. Answer: No, it didn’t. The can design is from San Francisco, CA-based brewer/distiller Seven Stills for its “In-N-Stout” beer. Clearly, the look apes the In-N-Out Burger logo.
In-N-Out Burger logo.
The similarity was not lost on In-N-Out burger, or its legal team, which sent Seven Stills a cease-and-desist letter saying to stop using the design. To the lawyers’ eternal credit, the letter is written in a humorous tone, filled with what Seven Stills counted as nine different beer-related puns. For example: "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," the letters says. "We hope you appreciate, however, that we are attempting to clearly distill our rights by crafting an amicable approach with you, rather than barrel through this."
Seven Stills was apparently expecting the cease-and-desist letter. That leads us to believe the design was a marketing ploy to generate buzz around the new brew – a position supported by the fact that Seven Stills tagged In-N-Out Burger in its Instagram post. Apparently the strategy worked. Seven Stills received free press in various media outlets, including SF Gate.
Seven Stills said it would take heed of the cease-and-desist letter, and release the beer with a different label. The “Not An In-N-Stout” beer, as it came to be called, is a vanilla/chocolate/strawberry imperial stout. It packs the hefty punch of 13.5% ABV. Seven Stills reportedly provided free In-N-Out burgers for visitors to the brewery during the beer’s release last week.
Tinkering around on Seven Stills Instagram, we get the impression this type of poking-the-bear/ walking-the-line between playful imitation and possible intellectual property theft might be a consistent marketing strategy. The “Rod and Reel” label below on a fish-themed beer harkens to the branding of Swedish Fish – the fish-shaped, chewy candy. Also, check out the “Where’s the Beef?” design further down. It recalls Wendy’s “Where’s the Beef?” campaign from the 1980s.
Seven Stills has received cease-and-desist letters before for its packaging designs, including one from Maker’s Mark, according to CBS. Still, brewery Co-Founder Tim Obert said that In-N-Out’s response was “the fastest we’d ever got a cease-and-desist from somebody. They sent us that C&D basically the next day.” He also admitted the “In-N-Stout” label was based on a cup from the fast-food restaurant. We’ll leave the contemplation of the ethics and intelligence of such a marketing game up to you. If that’s all too heavy, here’s a photo-shopped chuckler from Seven Stills’ Instagram. Players, play on.