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Scott G. Winterton, Deseret Morning News
Chadder's in American Fork, above, is being sued by In-N-Out Burgers.

Ordering a "3x3 Animal Style" burger is protected lingo of In-N-Out Burgers — not a phrase an American Fork burger business can toss around flippantly to mean a mustard-slathered, three-patty burger, attorneys for the California-based burger chain argued Monday in federal court.

Attorneys for In-N-Out Burgers filed a lawsuit last week in U.S. District Court of Utah, accusing Chadder's, an American Fork restaurant, of copying In-and-Out's menu, building layout and color scheme.

"The question is why would defendants build a restaurant offering the same food (with the) same colors like In-N-Out ... if they didn't think that a substantial segment of the population knew what an In-N-Out looked like and people associated it with good food?" asked attorney Margaret McGann.

McGann and her co-counsel, Fran Wikstrom, recently filed a request for a temporary restraining order, asking Judge Ted Stewart to shut down the restaurant until the alleged infringing elements are changed.

Stewart said he will rule on the requested restraining order at a later date but asked the two parties to work out an agreement that would prohibit Chadder's from using any In-N-Out "secret menu" slang.

That's fine with Chadder's, said Sterling Brennan, attorney for Chadder's and owner Chad Stubbs, because employees never used those phrases, even if customers did.

Brennan argued that In-N-Out attorneys are homing in on color similarities while ignoring differences, such as In-N-Out's use of a palm tree motif or its red letters and gold arrow logo.

"Have you ever observed any of those in connection with Chadder's?" Brennan asked Arnold Wensinger, general counsel for In-N-Out.

"No sir," he replied.

Brennan also argued that complaints Chadder's is copying In-N-Out Burger's color scheme aren't strong because many In-N-Out restaurants don't even follow a white and red building theme. Some are tan, brown or even brick.

"They're not consistent in their usage," Brennan argued, showing pictures of restaurants that fell outside the typical mold of a white building with a red, Spanish-type tile roof and red trim.

"They can't claim as part of trade dress a particular color when they don't use it consistently."

"Trade dress" refers to particular elements that differentiate a company's product.

Wensinger later testified that aesthetic building differences are required by a city or a developer in order to conform with the surrounding developments. However, he said that the inside decor of the 207 stores throughout California, Nevada and Arizona are nearly identical.

Chadder's has since added a blue trim to its building, a yellow background to one of its menus and blue aprons for the employees, Brennan said.

But fixing one or two elements won't solve the problem, McGann said.

"With trade dress, you have to look at the overall impact, you can't just separate the different elements," McGann said. "It's the overall visual impression. Look at a combination and arrangements. Addition of one accent color in limited placement does not remove all the concern that my client has about possible confusion and actual confusion that has occurred."


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