In & Out House name on the way out

An owner of the In & Out House name has confirmed that a California company has accused him of trademark infringement and is forcing him to change the name of his business.Scott Wirkler operated the Aspen In & Out House lunch counter for 13 years and now owns a Basalt store by the same name. On Thursday he confirmed that a contract has been negotiated with the In-N-Out Burger corporation of California, requiring that Wirkler and the current owner of Aspen’s In & Out House store “cease and desist” using the name In & Out.The agreement, Wirkler said, still awaits his signature and that of Adrian Burns, the man who purchased the Aspen eatery in 2000, before it will be final and binding. Wirkler said he assigned Burns permission to use the name when the business changed hands five years ago.Wirkler said he is willing to give up the name. He said there will be a conference about the contract Monday and that he would be better able to talk about the agreement, and the dispute leading up to the agreement, after that conference.

He said he has not chosen a new name for his business and is thinking about running a contest to let customers come up with a new moniker. Burns, who Wirkler said would need to choose his own name, different than that of Wirkler’s business, could not be reached for comment.The In-N-Out Burger chain, which operates in California, Arizona and Nevada, is a family-owned company that has been in business since 1948. The In & Out House was founded in Aspen in the early 1970s and has been doing business at the Aspen location on Main Street since, as well as at the newer location in Basalt. Wirkler said his attorney, during negotiations with In-N-Out Burger, argued that the In & Out House has been in business for more than three decades and that, because the burger chain did not complain about the name issue until now, it was too late to expect any redress.The burger chain’s corporate attorney, Arnold Wensinger, who was not doing the negotiating with Wirkler’s lawyer, said he was aware of that argument.

While declining to comment on the negotiations, Wensinger indicated that the counterargument characteristically is that the company acted as soon as it knew of the alleged trademark infringement. He said he believed the company heard about the In & Out House from a customer, who was concerned the similarity in names might affect the burger chain’s corporate identity.He said the burger chain has encountered a half-dozen or more similar infringements in recent years, adding, “You can’t just let it go,” or it can be used by another company as protection against legal action.”I have to tell you … we’re not about suing people,” Wensinger said. “We’re a family-owned and -operated company, so we’re very sensitive about how a small business might feel. We don’t want to appear as bullies.”He said his firm approached Wirkler with a cease-and-desist order then began negotiations in an amicable fashion.

Wirkler concurred, saying that the initial contact was not friendly at all, but “as we worked into it, yes, it became a friendly matter.””I’ve worked hard to establish a good name,” Wirkler said, “and I feel like a lot of it is now lost.”But his regular customers, he feels, will stick by him.”I’m relying on my product now, not the name,” he said.John Colson’s e-mail is jcolson@aspentimes.com