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In-N-Out settles suit against Chicago area copycat
August 5th, 2009, 4:30 am · 118 Comments · posted by Nancy Luna, Staff Writer
Nicky's logo violated In-N-Out's trademark arrow, the Irvine chain said in a suit.
Irvine-based In-N-Out Burger can claim victory, again, in another trademark infringement suit.
Executive Carl Van Fleet said the chain has settled with Nicky’s In-N-Out restaurant of Bronzeville, Ill. He declined to offer any more details about the settlement.
“The agreement in place requires confidentiality. We can’t discuss it other than to say (that) the matter has been resolved amicably,” said Van Fleet, the chain’s vice president of planning and development.
In-N-Out filed a trademark infringement lawsuit against Nicky’s on June 29. In the suit, In-N-Out accused the Chicago area fast-food joint of copying the chain’s iconic yellow “arrow” used in its logo.
In-N-Out takes “great steps to protect the In-N-Out name and arrow as a unique brand to our restaurant chain,” In-N-Out attorney Arnold Wensinger said when the suit was initially filed. “Consumers have come to associate our In-N-Out name and arrow with the highest in food quality and freshness. We will vigorously defend our trademarks and trade-dress against any and all infringers.”
The chain has successfully defended its brand against other copycats over the years. In 2007, a judge ruled that Utah-based Chadders must stop using trademark In-N-Out burger names on its menu, such as “Double, Double.”
(Nicky’s photo obtained from court records submitted by In-N-Out.)
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Funny how competitors try to use In N Out’s logo and product names, but just can’t make the same quality product.
Seems so simple when you eat it, but implementing the quality day in and day out is another story.
To me, In-N-Out is more about a brand… and experience… than it is about the food. The food isn’t that great.
you are high
I haven’t been high for many years, at least not on drugs I haven’t. I am not high just because I am not like you.
No, you have to be high to like eating their food. They taste like crappy patties.
PC must be the same person as Peachy.
disregard.
taste buds sleeping
You can only do so many things with hamberger so what do you expect. But their meat is fresh, their frys are fresh, their onions, tomatoes and lettuce are fresh and preped on premises and they bake their own buns.
Good enough for me.
You sort of give a reason why they should be better. If all they do is one thing… hamburgers and fries… then they ought to taste better.
i agree. the food isn’t bad or anything but just very overrated and ok once in a while.
I agree with you Steve. In-N-Out is very overrated. Their fries are junk, the best french fries are always frozen ones. Frozen fries always fry up better than fresh ones. The best thing In-N-Out has is their pink lemonade. I always drive by, see that ridiculously long drive thru line and laugh. If you want a great burger, go to Apple Pan in LA by UCLA. They are the best, they also have great fries & cream pies.
Yep, their burgers are mediocre at best. Tommy’s and The Hat blow them away.
TMG: I’ve seen that place in LA. I was always curious to see what that place is. Now I think I’ll drop by some time.
As opposed to what? McDonalds frozen Brazilian beef bombs? You must be the kind of guy who thinks that Dallas-based Pizza Hut, excuse me, “The Hut”, has better pizza than is all over Brooklyn.
No, I’m not that kind of guy, but thanks for your uninformed opinion.
What?
I’m glad you morons do not like their food. You should stay away forever, it keeps the lines shorter for those of us who know the truth. In-N-Out is the best!!!
If the details of the settlement are a secret, then how do you know that In-N-Out was successful in defending their trademarks? Just because there was a settlement doesn’t necessarily mean that Nicky’s lost. It could very well be that it was a win-win for both sides, a win-loss, or a loss-win. If the details are secret, you really have no idea.
This is all you know:
“The agreement in place requires confidentiality. We can’t discuss it other than to say (that) the matter has been resolved amicably,”
“Irvine-based In-N-Out Burger can claim victory, again, in another trademark infringement suit.”
The key word VICTORY might clear that up for you.
details? who knows? Maybe Nicky’s will have a RED arrow. But they won’t have a yellow arrow any more.
“But the won’t have a yellow arrow anymore”
Thanks Captain Obvious!
Well, your welcome, Peachy.
Don’t forget that fact. It may show up on an IQ test.
But spell THEY with a Y next time.
Hey Grandma, the correct spelling of YOUR WELCOME should be YOU’RE WELCOME. Remember that next time you take an IQ test, because In and Out only takes “TOP QUALITY.”
If you’re going to play Grammar Police on a fast food blog, you may as well learn how to spell correctly.
See, this is exactly the problem with this news report. Because the writer of the story wrote the line “Irvine-based In-N-Out Burger can claim victory…” you think that means it’s true. And you also think it’s just factual world knowledge. The point I was trying to make is that this is purely conjecture if the details of the settlement are secret. The above statement is not a quote from INO’s CEO nor is it a quote from the settlement.
Why don’t you tweet them? IN_N_OUT_Burger
Just ask.
You think they won’t answer? Wait and see.
indeed, settlement does not imply a complete victory. especially when the details are kept secret.
Good point. Someone mentioned that Nicky’s settled because they knew they were going to lose and didn’t want to have to pay INO’s attorney’s fees too. But if INO had a complete victory then they wouldn’t need to settle with Nicky’s, they could have simply let it go thru trial and had their attorney’s fees paid by Nicky’s.
You guys make it up as you go along, don’t you!
For gosh sakes. The purpose of a suit like this it to get the offending party to cease whatever action is illegal or infringing on someone’s rights.
If they got them to do that, there’s no point to a long drawn out jury trial.
Business people know that time is money. get it done and move on.
the end.
I don’t know, maybe it’s because I don’t have a trademark that somebody could infinge upon, but I think companies sometimes just get their shorts in a twist over nothing. Now I will admit that using the arrow is pretty blatant in this case, but that seems to be the only thing.
McDonalds is a big user of lawsuits against any place that has the gall to use Mc or Mac in their name,
I think that if the company is confident enough in their product then why should they worry so much over something like this?
And you know, we all are trademark violaters when ever we say kleenex instead of tissue.
Maybe Nicky’s (in Chicago) does chicken and buys outside the company. Those are verboten for In N Out. Hamburgers only, and strict control of all products used in the franchise. lettuce, potatoes, beef. All from their own growers/providers.
AND have you noticed that you don’t need to speak SPANISH to order?
(just a plus for me, not something they focus on) The thing is, they pay their help well, and get smart employees. College students, etc.
I don’t have to speak SPANISH to order anything anywhere. My English works just fine.
For my opinion on In N Out see my post on “OC burger chain expanding to Middle East”.
Thanks, I’ll pass
For twitter info see IN_N_OUT_Burger
The managers are out there Tweeting away. Go talk to them if you have any questions.
or band-aid instead of adhesive bandage!
Kleenix = tissue
Jello - gelatin
Windex - window cleaner
Frigidaire (used to be generic) for refrigerator
Coke sometimes was = soda
Popsicle = frozen flavored treat
I don’t think the manufactures object when their brand name is the first to come up in the consumer’s mind.
there are many others.
“There are many others”
Thanks again, Captain Obvious!
Add to the list… if you can
Now you are trying to start a war by challenging my intellect? Wow, Grandma, you take this food blog way too seriously. It’s just the internet… stop trying to prove yourself to people you’ll never meet!
Alas, I can come up with a few, just to show you that I do have a few brain cells in working capacity:
Hoover, Tupperware, Yo-Yo, and Escalator.
Donald Trump is trying to patent the phrase “You’re Fired”, so I recon
every time a boss says “You’re Fired” you can tell Donald and he will sue.
Actually that’s not true. Any college-level marketing class will teach you that no, national brands do not like it when their own trademarked name becomes synonymous with a product. It debases their product and causes confusion for the consumer. If you say you need a Band-Aid and reach for a generic brand, how is that helping Band-Aid? It’s not.
chapstick = lip balm
its not so much that someone uses the name. its more that someone is using the name or logo and making money off it. you saying kleenex is more like free advertisement. but if you would make your own tissue brand and brand it kleenex, then you are making money off someones else brands. then it is a trademark/copyright violation.
Actually, the term “kleenex” has become genericized and is therefore no longer protected as intelectual property. This is also the case with terms such as “Q-tip”, which at one time was trademarked.
A trademark typically becomes “genericized” when the products or services with which it is associated have acquired substantial market dominance or mind share. The term is legally significant in that unless a company works sufficiently to prevent such broad use of its trademark, its intellectual property rights in the trademark may be lost.
Actually, the term “kleenex” has become genericized and is therefore no longer protected as intelectual property. This is also the case with terms such as “Q-tip”, which at one time was trademarked.
A trademark typically becomes “genericized” when the products or services with which it is associated have acquired substantial market dominance or mind share. The term is legally significant in that unless a company works sufficiently to prevent such broad use of its trademark, its intellectual property rights in the trademark may be lost.
Which is exactly the reason why it’s bad for a company when people start using their brand name as the generic name for something. Thank you for your in depth and intelligent response.
Nicky’s was infringing by using the same color scheme, the same logo and the same way of spelling In-N-Out. Had they changed all of the above and done In and Out or something else, they would not be infringing. This is a blatant example of infringement though.
Also, it has nothing to do with confidence of your product. If you create a brand, spend many years honing it and finally becoming quite a success, heck even a cult fave, you don’t want someone opening a competitor today and basically riding your coattails to their own success. Or worse, they put out a crappy product and it harms your reputation.
Steve, you will know who “won” this lawsuit when you see Nicky’s take his sign down and come up with a new name. In-N-Out didn’t lose here. They settled because In-N-Out could most likely hit Nicky’s with an attorney’s fees bill once the lawsuit was over and as the loser and smaller company, no way would Nicky want to pay In-N-Out’s army of lawyers. That would be my guess as to why to settle.
Fair enough, but honestly, what you’re saying so far is conjecture. You might assume to know In-N-Out won, and it’s probably likely they did, however, there is no way to know that until what you say will happens, happens. Until then it’s premature to report that In-N-Out won. I guess I am too logical… as I have stated I am a numbers guy… but right now, the reality is that the settlement was confidential, so I think that’s all that should be said about it and leave the conjecture out of this story.
I agree 100% with you about a trademark infringement. As mvmommy stated, because she doesn’t have a trademark she doesn’t get it. The number one reason to defend your trademark is what you stated: a lower-quality product that people might either confuse with yours or might associate with yours. Either way, as a trademark holder, you have every right to defend your brand.
Steve,
Will you please get out your dictionary and look up the word VICTORY?
i don’t think your problem is being too logical
OMG
Steve,
I totally agree with you..This is a major problem in our society and it’s one of the few reasons why our society is falling down the sh**ty slope..It’s all about words and it they are placed..In this instance, they would have us BELIEVE that INO won by using the word victory—but you are completely right, it’s conjucture..Just as the same as Clinton saying “i didn’t inhale” then late we find out not only did he inhale, but he was getting “hummed” in the corner office…It’s a play of words and when our society starts to use the words in the appropriate manner, then the meaning of them will be better understood.
You don’t know how nice it is to read your response, thank you. I was starting to wonder if I am the only person left who is aware of this problem.
I think it has more to do with a certain company harming the reputation of its targeted business than anything else. Yeah if some guy were to open up Mc Bobbys,Mc Donalds by in large wouldn’t have much to worry over in terms of profit/size. But if Mc Bobbys started selling similar food and worse people started assuming his store was affiliated with Mc Donalds it could cause problems.
McDonalds has sued Quality Inn because they wanted to use the name McSleep for economy hotels (unfair competition; MCD won)and they tried to sue a company in Denmark cuz they wanted to use the name McAllen for a street vendor type sandwich maker (McAllen won and MCD had to pay court costs).
Silly
that’s because Denmark doesn’t play idiot lawsuits…
My thought exactly.
When did In N Out start selling Gyros?
Are there even In-N-Outs in Chicago?
No, they are in … CA, AZ, NV and UT
Last month I twittered that they were only in CA, and an In N Out person came in and corrected me!
“We are also in Nevada, Arizona and Utah.”
Why would you even twitter false information anyway?
It was my mistake to give wrong information. They started out in CA
And I was impressed that they paid so much attention to what people said about them.
Gee, Peachy, I’ll try to do better in the future.
Peachy is a wonderful contributor to the discussion here. I hope she doesn’t apply for a job ate In-N-Out. They take only top quality.
Correction:
I hope she doesn’t apply for a job AT In-N-Out.
I don’t think INO corporate Tweets…
Yes, they did Tweet. I can send you a copy of the page if I had your email.
Their logo and everything. Maybe not CEO. Of course I’m sure someone could borrow their avatar. But why would they care if the information was not correct?
Hey Grandma, since you’re so much smarter than everyone else, and keen on pointing out grammar mistakes, perhaps you should check your own grammar first! “Apply for a job ATE In-N-Out…”
and immediately after was the corrected spelling. I have a hard time with long words like ‘at’
Mmmmm… a Double Double would taste good right about now.
yes is does.
OMG!
HOT DOGS?
Well, no wonder they don’t want anyone confusing their quality with Nicky’s!
You got like a million posts here. You must own stock or one of the Snyder’s, hummmm
No, but I know the CFO
In-N-Out burgers are the best I’ve ever had. Their fries don’t compare to McD’s, though.
I always felt their is no potatoe in McDonalds fries, I hate them
I loved the old fries at Carl’s Jr., remember them? They were pressed out of a machine. They were the best. They stopped making them many, many years ago.
Those were so gross! Did you know they were made from instant mashed potatoe flakes?? I know, cuz I worked at Carls when they first started using it.
I worked at the one on the corner of Katella and Tustin (I dont think it’s there anymore) and that was when the females wore the white waitress dress with the red or green aprons and that silly little tiara shaped thing that said Carl’s Jr on our heads.
In-N-Out is my favorite hamburger place. Even Gordon Ramsey says he eats there.
And so does Paul Potts, and he was in New York where he couldn’t get In-N-Out.
Those poor bastards living in Chicago with no In-N-Out! Reason #472 why Southern California is the greatest place in the world to live!
Chicago has no idea what a In-N-Out Burger Chain is, nor would they care there’s to many other hamburger chains overthere.
I live in New York, and wear my IN-N-OUT T-shirt around Manhattan. Every time I do, I have several people ask me where the nearest location is….unfortunatelly my answer is “um….Phoenix ???” In these tough economic times, it is sad to see $$$$ left on the table.
PLEASE LET ME HAVE AN EAST COAST FRANCHISE!
But once you have one, it won’t be the same. Remember when you could only get Coors beer west of the Rockies? Once they went national, it was all down hill……
They put the ham in hamburger and lets applaud that !!! hands together now!!!
Oink Oink..nope no pigs allowed in In-N-Out
If “Nicky” would have said “In -AND- Out” it would have been OK.
No
grandma102 & Josh,
am I missing something here?
I thought this co was being sued because it used “In-n-Out”, a trademark name. Is In-AND-Out a trademark name? If so, where are they?
I have lived in CA all my life, so I am not familiar with In-AND-Out.
Oh, so it was mostly because of the *arrow* and not the name?
Just asking. Not trying to start a war.
tenyrslater,
We have a new one in Huntington Beach. I’ve been to others, Irvine, Costa Mesa, and Garden Grove. Here’s a link to all the locations:
http://www.in-n-out.com/locations.asp?view=all
“In-AND-Out” would NOT be OK. It would have been worse.
It’s a different business entirely. One that doesn’t sell Hot Dogs.
They may not have even been aware that the arrow was used by a company in the west. Amicable resolution indicates that they agree to whatever In-N-Out request for their signage & logo.
It can add up to lots of $$$ if the logo was used on house products, office products, etc.
Sorry, but you are totally confusing me, does In-N-Out sell hotdogs?
My In-N-Out only sells burgers, fries, sodas and shakes.
Or is it that an In-AND-Out sells hot dogs?
And what’s up with the logos being used on house products?
Like what product for instance, TP, bars of soap, deoderant?
And what office products? Paper clips, pens, tablets, post notes?
Not trying to be stupid here, but I would like to know what you mean.
tenyrslater,
Question about menu:
No, In-N-Out sells nothing but beef hamburgers. No hot dogs, chicken nuggets. whatever. And they plan to keep it that way.
Nicky’s sells hot dogs and who knows what else. They are a different operation, with a different menu..
Next Question (logo)
If Rick’s uses the logo on their stationary, they need to change it. On sales receipts, note pads, or business cards. These would be office supplies.
Other restaurant supplies as bags, aprons, napkins, place mats, cups, trays, tray liners, etc would also have to be replaced. That can be very expensive.
I hope that helps.
They do make a good grilled cheese sandwich.
Maybe I’ll order a cheeseburger with out the burger.
How dare some Chicago eatery illegally duplicating our California esteemed In-and-Out burger chain!
Grandma wrote: “Add to the list… if you can”. Umm…Xerox.
Nicky’s should change their name to “McKey’s”, then they could have two lawsuits to deal with.
Xerox
Good one!
Two jumbo Chicago-style hot dogs, fries, and a large drink for $4.99 is more food and a better deal than In-N-Out’s Double-Double, fries, and medium drink price. Two people could share Nicky’s two-dog deal and dinner would only cost $5 and change. Too bad we don’t have Nicky’s In-N-Out here in Orange County.
We have Weinerschnitzel if you want to go that route. I can’t guarantee what you’ll be eating.
I will say that Chicago Pizza is great. If you’ve ever flown out of O’Hare, you’ll see people buying pizza to take with them for the folks back home… if they don’t eat it en route.
Weinerschnitzel doesn’t serve two jumbo Chicago-style hotdogs, fries, and a large drink for $4.99 so your comment is moot. Your additional comment about pizza is a complete non-sequitur.
Grandma got pwned!
I don’t know if the food is any better at In-N-Out since I don’t eat fast food that much, but its nice to give your order once in English and they understand what you said. They also seem to be cleaner outlets.
In-N-Out is privately and family-owned and has been for a long time. The family that owns the company takes pride in it. They’re also Christian (hence the Bible references on the side of some of their fry/drink containers). They pay their employees very well and also treat them very well. It’s a really good company.
Yeah, but being “Christian” didn’t stop all the bickering, fueding and lawsuits within the family, now did it.
Who would ever confuse Nicky’s gyro’s and Chicago hot dogs in Bronzeville, Ill. for California-based In-n-Out burgers?
Well, I’m confused. Next time I’m at In-n-Out, I’ll try ordering a gyro. Or a Big Mac. Hey, they’re both burgers.
for a place called in-n-out, the service seems to be really slow most of the time. Sometimes it is so crowded and slow that i would rather just go to reliable mcDonalds. If you really want to make money, why dont you expand to other states so that people wouldn’t have to copy you? oh and why dont you make more restaurants so that every location doesn’t have a line around the block at lunchtime? And who designed your locations? It seems like its a chore just to drive in to your drive through, where other fast food places are more open and its easier to drive-in-n-out!!!!! People seem to like your food, but so far your slow service has kept me from experiencing that on a regular basis.
Tanner, you just proved the point why not to expand. Supply and demand. They keep their locations down to a reasonable number that creates a demand and keeps those locations busy. Plus since it is always busy, people just have a false sense that it is more desirable or better (not knocking INO, I love their burgers). If you saturate the market like Starbucks or McDonalds, people start hating them, eating at them less and they just hurt each other because one is on every corner. Trust me, the INO owners are not hurting for money. Plus there is something “nice” that they don’t want to sacrifice their quality for quantity. Nothing is frozen. All stores are within X miles of their several food plants.
And again, for trademark violation, it isn’t just the name or the logo. Sometimes it is the combination of the whole - Nicky’s has the same logo, the same name and same color scheme. There is no debate. They even are in the same market (fast food). The name alone wasn’t the tipping point here.
When I’m trying to find a table at In-n-Out………..I wish more people would take your attitude and go to McDonalds…………..I’m always amazed at how packed In-N-Out’s are compared to other burger places…………… Tanner, thank you for supporting your local McDonalds!………I’m lovin it!
Every time I eat at In-N-Snout I feel like I’m at a hospital with candy-stripers serving me unhealthy food. Mainly because it’s all the red ketchup that gets all over there uniforms and how they’re so busy it looks like an ER or they’re in surgery or something: slow down people a burger and fries isn’t life and death. Sometimes I like a little dirt on the floor and people who always don’t speak correct English or have an accent, because then I don’t feel like I’m on some planet where everyone is a spoiled college brat from OC. Other than that, they’re food is still very high in fat and calories just as much as any other fast food chain and if you ate their enough would cause you to have to go to the hospital anyway, or at least the bathroom.
Not true. A double double and fries combined is under 1000 calories (not a small amount but it is what it is) whereas a double cheeseburger (Super Star) and fries at Carl’s is 1500 cal and double whopper and fries at BK is also 1500 cal. Single whopper saves you 300.
Quality and taste, Carls and BK not even close.
Tanner just described a near perfect business model.
top quality employees? You most likely haven’t been to the one in HB. Too much goofing off even when they’are busy.
Food is far from the best out there. Sometimes it smells like cat throw up. Leaving you auto smelling disgustingly for days on end.
They used to be the best burger, but that was years ago. Now they suck most of the time.
I do not care for In n Out at all, way over rated. I wonder if Nicky’s ever even heard of them before the were accused of using the arrow.
Next time I’m in Chicago, I’ll try their food.
No wonder mom and pop places can’t succeed. It’s ridiculous!
Well said.
Why is this news?
Because it’s light and fluffy and we get to bicker with each other and forget the serious side of life for a few minutes.
And then I can ask right back at ya, why do you read it?
Congrats In N out. They are the best fast food burger out there by far, not counting restaurant burgers. If there is better, someone please let me know so I can try it. How can you beat fresh ingredients, patties, fries etc?
TK Burgers - Try ‘em.
You actually get a pattie that is filling without having to buy a “double”.
It depends on what you consider ‘fast-food’ but my suggestion is The Counter in Irvine. But if you mean straight up fast food, grease pit type place, I think Wendy’s burgers win hands down. When I say Wendy’s I am comparing to: McDonalds, Jack in the Box, Burger King, and In N Out.
Next on my list after Wendy’s and The Counter is Tommy’s and Fat Burger.
In N Out is down there with McDonalds, Jack in the Box, and Burger King as far as I’m concerned. But McDonalds, Jack in the Box, and Burger King all have better fries than In N Out.
I agree. And the shakes are the best by far. Now, if you want a little bit of a bigger burger try Carol’s International Bar in Orange on Katella. It has been 10 years since I was there, but at the time they had the best burger in OC in my humble opion. It is a cheap cinder block bar that most people would not go into. But they did have great burgers!!!
On the infringement story, there is another In-N-Out around that I ate at just two weeks ago. OC’s In-N-Out tried to get them to change their name but when it was pointed out that they have had the name longer and that perhaps the OC chain should be the one changing names, the OC group dropped the challenge. But, in terms of taste, the OC chain’s burgers and shakes were slightly better. However, the independent store’s onion rings and fried mushrooms were over the top fantastic.
Love Tks!! Really In n Out down there with Mcdonalds and the others? Have you seen the way they prepare food at Mcdonalds? Looks like they are shuffling trays in and out of the microwave. yuck. Wendys does have a fantastic value menu though. Jack and Burger King fries all taste processed to me. To each his own I guess.
I have a problem with these national chains though, it seems like all their food decisions and menus are thought out in some corporate board room all tied into goofy promotions. They all get there ingredients from some mass produced industrial complex somewhere in the midwest or even south america, then frozen and shipped to your local restaurant. Sometimes unmentionable stuff falls in the beef but I guess a small percentage won’t hurt us. The end result is some flat, limpy, thing that is supposed to make us happy. Something is always lost in translation between the board room and the restaurant. Go try a BK broiler, i dare you.
At least In and Out won”t build a restaurant outside of a certain distance from the headquarters, just to ensure freshness.
Speaking of Fat Burger, Nancy may want to update the closure list as the Fat Burger in Irvine, in the Kohls center on Jeffrey and (Trabuco I think) closed shop. If only Quiznos would start going out of business!
The burgers get smaller and smaller. Anyone else notice that? Perhaps someone should make something like the original In-N-Out burger. The shakes have been pitifully small for years.
I eat at In and OUt a lot