Burger chain says 'In & Go' is out of line.

Byline: Edward Russo The Register-Guard

Big fast-food chain In-N-Out Burger is turning up the legal heat on Jerry Rizza of Eugene just days after he opened his small In & Go Burger restaurant near Valley River Center.

After keeping tabs on the entrepreneur for several weeks as he prepared to open the eatery, In-N-Out last week filed a lawsuit against Rizza in U.S. District Court in Eugene, saying the name and color scheme of Rizza's restaurant infringe on In-N-Out's trademarks.

Rizza initially attracted the interest of In-N-Out in August when he began remodeling his restaurant near Valley River Center and put up a sign saying he was calling his business In or Out Burger.

In-N-Out - a chain with 170 outlets in California, Nevada and Arizona that is based in Irvine, Calif. - sent Rizza a stern warning letter. The chain even hired an investigator to visit the place during the remodeling and take photographs.

When Rizza opened on Sept. 1, he modified the name and called it In & Go Burger.

Not good enough, In-N-Out claims.

The name, and Rizza's white, red and yellow color scheme, are similar to In-N-Out's name and appearance, the chain says in its lawsuit. The similarities are likely to cause In & Go Burger customers "to mistakenly assume" that the business is connected to In-N-Out Burger, the lawsuit alleges.

Rizza could not be reached for comment Thursday. His wife, Margie Rizza, said that she and her husband need time to discuss the lawsuit before commenting. Rizza last month told The Register-Guard he thought his eatery's name was different enough to avoid any legal liability.

In-N-Out, which said it has federal trademarks for its name and business symbols, alleges the Rizzas purposefully picked a name and color scheme to "appropriate and trade upon In-N-Out's extensive goodwill, and to divert sales" to themselves.

The lawsuit asks the court to order the Rizzas to stop using the In & Go Burger name. In-N-Out also wants the Rizzas to surrender any profits they made using the name.

In-N-Out said it asked the Rizzas by letters in August to stop using similar versions of its name.

In-N-Out's attorney also tried without success to negotiate with the Rizzas by telephone, In-N-Out said in its lawsuit.

Letters and photos submitted with the lawsuit show that In-N-Out hired an investigator who visited the Rizzas' restaurant in August while they were converting it from a Taco Time franchise to their independent burger outlet.

The investigator took photos of small temporary signs on the restaurant.

One sign said "Future Home of In/Out Burgers" and was decorated by a bent arrow that is used as a logo by In-N-Out Burger.