In-n-Out of Trademark Litigation

Those of us in Southern California know and love In-n-Out burger - the go to burger joint around these parts. But In-n-Out has decided to stay relatively small and local. You can't really find the burger joint outside of California. This regional approach may encourage rivals in other parts of the country to negligently or knowingly take a run at using In-n-Out's signature trademarks in commerce.

Trademark rights are based primarily upon the principle of use in commerce, of which, geographic location is a subset and critical concern. The key element for proving up a trademark infringement case is simply likelihood of confusion. Thus, even if no consumer is actually confused by a burger joint in New York using some form of In-n-Out's marks, an infringement action may lie.

Perhaps because of its low regional left coast profile, In-n-Out finds itself in many trademark actions. There is a lesson to be learned by In-n-Out's vigilance. Trademark lawyers and intellectual property attorneys know that, when it comes to trademarks, the phrase "use it or lose it" often applies. Intellectual property must be vigorously defended or else the rights holder may lose exclusive rights to the asset.