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Trademark infringement or free advertising?

Patents provide legal protection against those who wish to steal ideas or products. Many believe that the value of a product is directly tied to the willingness to aggressively protect their products and services against infringement.

Now, however, there seems to be alternate course of action. In-N-Out Burger recently made news when it sent a pun-filled cease-and-desist letter to the San Francisco-based Seven Stills Brewery & Distillery, which announced that it was going to release In-N-Stout beer.

Cease-and-desist letter

The letter got coverage in the San Francisco Chronicle and the San Diego Union-Tribune and elsewhere. It had the necessary language to point out that the beer’s label appropriated the burger chain’s iconic arrow logo and palm tree. Brewers response

Instead of stopping production on the beer, Seven Stills posted the letter on its’ Instagram account, announcing that the beer was coming soon and asked followers to find all the puns in the letter (the brewers found nine, but one follower counted 10).

Sensing victory or hedging their bets, the company also created a video promoting its release. The video blurs the label with the trademarked material, but then goes on to offer free In-N-Out Burgers to the first 100 people who purchase the beer at the brewery. The ad ends appropriately enough with “Cease being late! Desist missing out!”

Cheaper than mediation, more fun than litigation

This sort of back and forth is now more commonplace in the commercial arena. The 2-year-old distillery and brewery is a small operation, and it created a limited run beer (which will apparently get a new name next time it is brewed). Obviously, the small company is not selling In-N-Out style burgers.

This win-win approach also spawned a lot of free publicity for both sides with the larger entity showing that it had a sense of humor about it. However, this may not always be appropriate. If a trademark infringement issue concerns you, it is always wise to speak with an attorney with experience in this area of law.

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