Intellectual Property Law

In-n-Out Heads East

By Mike Madison

Via Gordon Smith, I learned the other day that In-n-Out, the California-based burger chain known as much for its cult status among its fans as for the quality of its food, is expanding into Utah.  In-n-Out started in Southern California — source of its distinctive palm-tree silhouette — and in the 90s expanded to Northern California and east and northeast to Arizona and Nevada.  Now, the chain is heading to Utah, with locations coming to Draper, American Fork, West Jordan, Orem and Layton, according to Cougar Eats.  For Utah-based fans of In-n-Out’s secret menu (don’t forget the hidden Christian messages!), this is great news. 

In-n-Out used to be one of those only-in-LA treats; in fact, for many of us, In-n-Out was a mandatory SoCal stop.  You couldn’t get it anywhere else.  Last summer, NPR reported on a new book about the history of the company; the report (and perhaps the book) nicely captured the slightly “off” spirit of the place.  (Here’s a link to the book.)  Outside of Southern California, people who had actually visited an In-n-Out were part of a special crowd:  Only they had an In-n-Out t-shirt; only they spoke the menu code; only they had the In-n-Out Burger bumper sticker that had been customized to read “In-n-Out Urge.”

When In-n-Out expanded to Las Vegas and to Arizona, that felt OK.  The restaurants lost some of their exclusivity, but still, only folks who lived in warm weather climates – or who could afford to travel from the cool north to the hot south – could eat there (and get the t-shirts, speak the code, and get the bumper stickers).  But then In-n-Out came to Northern California.  With that, all bets were off.  With an In-n-Out at Fisherman’s Wharf, not only did the cool weather/warm weather divide get blown up (at some NorCal In-n-Outs, the fog is so thick that you can’t eat outdoors!), but the mystique of In-n-Out – already fragile – began to evaporate.  If Northern Californians could get In-n-Out at home, then everyone could get In-n-Out.  I don’t know whether Southern California In-n-Out fans were resentful, but Northern Californians lost something in the deal.  You needed a new reason to go to LA.

And now … Utah.

Nothing against Utah, of course (I have great friends who live in Utah!), but once In-n-Out comes to Utah, then it’s onward to Omaha, Des Moines, Memphis, Raleigh and eventually — horrors — Hartford.  When the palm tree silhouette appears in Orem, it’s Oz in reverse:  We’re going to be in Kansas soon.

Does this matter, in life or in law?  In-n-Out has a winning formula and the conviction that there’s burger money on the table outside of its Southwest base.  You might look at the move in trademark law terms and conclude that there’s nothing to write about; the chain isn’t putting its marks at risk, and it’s not engaged in what is sometimes referred to as “self-dilution” by expanding its product line.

But if the marks aren’t at risk, is the brand strong enough to withstand the expansion?   In-n-Out sells burgers, which are good but not *that* good, and it sells cult.  It’s taking both on the road in a big way.  As everyone gets in on the secret, the cult has to fade.  Are the burgers alone good enough to drive the company?  As the old song goes, how are you going to keep them down on the farm, now that they’ve seen Paree?  Those of us who fancy ourselves part of the original in-crowd would hate to see In-n-Out get, well, common.

Which is a very strange thing to think or write about a hamburger.

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Full post as published by Madisonian.net on December 01, 2009 (boomark / email).