By Erin Kelly
As a small brewery in California, Seven Stills Brewery & Distillery (“Seven Stills”) uses creative tactics to conjure up business. Among their marketing strategies is intentional trademark infringement. On July 12, 2018, Seven Still posted a picture to the social media platform, Instagram. The post displayed the In-N-Stout beer can design, advertising the upcoming release of their new Neapolitan milkshake stout. Seven Still was under no impression that the popular burger joint, In-N-Out, would allow the blatant trademark infringement. “We were pretty certain it wouldn’t fly,” a later Seven Stills Instagram posted explained. “If we really wanted to get away with it, we’d hide the art until release, and be sold out before anyone complained.”
In the original picture posted of the In-N-Stout beer can design, Seven Stills tagged In-N-Out’s Instagram account, just to be certain it was seen. In-N-Out was quick to respond with a cease and desist letter, requesting Seven Stills to refrain from further use of In-N-Out’s trademarks. Seven Stills seized the opportunity it hoped to create all along – major publicity. The brewery posted the cease and desist letter to Instagram, highlighting In-N-Out’s clever use of brewing puns throughout the letter. Seven Stills complied with the letter and redesigned the cans and the beer name to remove any relation from In-N-Out. Capitalizing on the attention, disguised as a symbol of their comradery, Seven Stills purchased 100 burgers from In-N-Out to give away to the first 100 customers that purchased their new stout. They also posted multiple photos of the new beer can design in front of the In-N-Out sign and food, continuing to ride on the coattails of In-N-Out. The marketing strategy was successful, as the new stout sold out quickly.
This In-N-Stout has not been the first or the last of Seven Stills’ infringement marketing ploys. The replacement design for In-N-Stout featured a silhouette of Kanye West, filled in with lyrics from one of the singer’s recent songs. Previously, Seven Stills has also produced beer cans with an uncanny resemblance to the product design of Swedish Fish and TNT Fireworks. Whether there will be any trademark misappropriation suits and how long Seven Stills can thrive on this market strategy are highly-focused.
Brendan Weber, ‘In-N-Stout Beer’ Spurs Punny Cease and Desist Letter from Burger Chain, NBC Bay Area (Aug. 15, 2018, 10:43 AM), https://www.nbcbayarea.com/news/local/In-N-Stout-Beer-Punny-Cease-and-Desist-Letter-490937491.html.
Luis Gomez, ‘In-N-Stout’ Beer Offends In-N-Out. Burger Chain Crafts Response Full of Beer Puns, San Diego Union-Trib. (Aug. 15, 2018, 12:25 PM), http://www.sandiegouniontribune.com/opinion/the-conversation/sd-in-n-stout-beer-offends-in-n-out-trademark-20180815-htmlstory.html.
Mark Saunders, In-N-Out Sends Pun-Laden Cease and Desist to California Brewery over ‘In-N-Stout’ Beer, 10 News – San Diego, California (Aug. 15. 2018, 6:13 PM), https://www.10news.com/news/in-n-out-sends-cease-and-desist-to-california-brewery-over-in-n-stout-beer.
Seven Stills (@sevenstills), Instagram, https://www.instagram.com/p/Bmji3gxnLkG/ (last visited Aug. 31, 2018).
Seven Stills (@sevenstills), Instagram, https://www.instagram.com/p/Bk1h6pnnyin/?taken-by=sevenstills (last visited Aug. 31, 2018).
Seven Stills (@sevenstills), Instagram, https://www.instagram.com/p/Blo896Bnu2L/?taken-by=sevenstills (last visited Aug. 31, 2018).