Portland (The City) And Pabst (The…Beer?) Cease Battling Over Unnecessary Trademark Dispute
from the how-productive dept
Beer: it seems to cause all kinds of trademark problems. I’m actually not sure why that is. Beer makes me happy, not litigious. But for some reason, it also tends to make breweries go after other breweries, educational institutions go crazy on breweries, and even occassionaly causes all the Schlaflys in existence to fight against one another. And now, it appears to have claimed the great city of Portland, Oregon as the latest victim of its trademark-dispute-inducing properties.
Well, to be fair, the dispute part actually appears to be coming to an end. The problem is that it never should have started at all. You see, Portland, a city, initially sent a cease and desist letter to Pabst Brewing Co., makers of the skinny-jeans-flavored beer, all over an advertisement for a music festival the brewery was putting on in the area.
The city had alleged the brewery used “a confusingly similar version” of the Rose City’s trademarked “Portland Oregon” sign, which sits on the roof of the White Stag building in Old Town-Chinatown, to promote the beer giant’s inaugural Project Pabst music festival. On Wednesday, the City Council was expected to sign off on legal action against the company to recoup unspecified damages for the “unauthorized use of the trademark.”
And here are the signs in question:
So, first off, they’re obviously similar. So similar that moronic visitors or residents of the city of Portland will somehow think that Pabst bought their town, or vice versa? Probably not. Why? Well, because, you see, one is a god damned city and the other is a brewery. I’m frankly not entirely certain how the city’s trademark was granted in the first place, since I’m not clear on how having a sign announcing what city the person reading it is in denotes any kind of commercial application. It may be that the city had planned on using images of the sign on shirts and clothing and the like, but even if that’s the case, it wouldn’t conflict with Pabst putting on a concert. Pabst and the city of Portland aren’t competing with one another in any kind of marketplace, so the whole dispute was fallacious to begin with.
Fortunately, it appears somebody clued the city in on all this.
But Dana Haynes, Hales’ spokesman, said both parties are now trying to reach an accord. “The attorneys from both sides have been communicating, and they felt they were in close proximity to an amicable solution,” Haynes said. They haven’t reached a solution, but avoiding a costly lawsuit “would be the better solution by far,” Haynes said.
No kidding. All the more so since Portland would lose that costly lawsuit on the grounds that they’re a city and shut up. Even so, it appears Pabst, who started all of this by trying to put on a freaking concert in the city, is playing peacemaker. They’ve altered the logo slightly on their websites. Too bad, because they didn’t have to. It’s nice to see a trademark dispute end outside the courthouse rather than within, but it’d be even nicer if this nonsense hadn’t started to begin with.
Comments on “Portland (The City) And Pabst (The…Beer?) Cease Battling Over Unnecessary Trademark Dispute”
I think most children can tell the difference between a reindeer and a unicorn.
Well, that’s you. It makes plenty of people violent, and pretty much everyone stupid, because its active ingredient is a toxin that damages the brain. And when a company gets stupid and violent, this is most often expressed through legal, rather than physical, force.
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Yeah, well “A herd of buffalo can only move as fast as the slowest buffalo. When the herd is hunted, the slow and weak at the back are killed first. The speed and health of the herd keeps improving by the regular killing of the weakest members.
“In the same way, the human brain can only operate as fast as its slowest brain cells. Excessive intake of alcohol, as we know, kills brain cells. Naturally, it attacks the slowest and weakest brain cells first.
“In this way, regular consumption of beer eliminates the weaker brain cells, making the brain a faster and more efficient machine. That’s why you always feel smarter after a few beers.”
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I know you comment is tongue-in-cheek, but the pedant in me can’t help but to offer a correction:
“In the same way, the human brain can only operate as fast as its slowest brain cells.”
This is simply, absolutely, not true. The brain doesn’t work that way and its overall speed and efficiency is not limited to the slowest of neurons.
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That’s actually a myth. Alcohol doesn’t damage the brain, though being an alcoholic can contribute to circumstances that result in brain damage.
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What do you think addiction is?
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A collection of behaviours, poorly understood by science or medicine, which appears to be at least partly driven by genetic factors and which is much more complex and diverse than how it is typically understood by the general public.
The one thing that addiction isn’t is “brain damage”. Neuroadaption is not the same thing as neurotoxicity, and neuroadaptation is something that happens in response to essentially everything you experience.
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Addiction is not brain damage, although brain damage can increase addictive behaviors. Addiction is something that nearly everyone has, but the subject of the addiction is not always the same and is not always harmful.
It’s the cloven hooves, right?
I’d like to see the “Moron in a hurry” defense used in more summary judgement motions. Heck, should be used in more “You’re kidding, right?” letters to clue-impaired complaints.
and as for the state outline?
Will Oregon now sue Portland?
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Not that they would, but the state has had 75 years to oppose the sign: http://en.wikipedia.org/wiki/White_Stag_sign.
The city of Portland was ending frivolous lawsuits it started before it was cool
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I dig.
Besides, the horsey (unicorn?) is MUCH prettier than that ugly deer.
Nothing says “We welcome your festival to our town!” better than a nice Trademark Dispute I tell ya !
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We have enough actually good beer (local microbrews FTW!) in Portland that we really don’t need more PBR in town.
Oy! What is left out of this story really does put Portland in a pretty bad light, and that strikes me as unfair.
Many factors make the two signs quite similar, the use of a four-legged horned animal jumping upwards to the right, above the outline of the state, in a very similar font. But that really doesn’t matter a lick because Pabst has essentially admitted that the two designs are similar when they asked the city of Portland to approve the ad.
From the linked story, Pabst “created its own likeness of the sign” which is an “iconic sign” to the folks in the area, and followed Portland’s “process to authorize using the sign in media, promotional materials or other causes”. In filing that application Pabst is acknowledging publically that what they have created is a “likeness of the sign”. That would likely give Portland all they needed in court to be successful.
The Pabst ad is not an ad for a brewery, it is an ad for an event taking place in the city of Portland. If such an event uses a likeness of a sign known to the people of Portland as officially representing the city of Portland some may mistakenly believe that the event is sponsored or approved by the city of Portland.
TD made similar mistakes with the Long Trail beer label story too. Is there something about beer trademarks that make TD writers get loopy?
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“TD made similar mistakes with the Long Trail beer label story too. Is there something about beer trademarks that make TD writers get loopy?”
What mistake did TD make on this story? All of the essential points you made were covered in the article.
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“Portland, a city, initially sent a cease and desist letter to Pabst Brewing Co.” – there were a number of pertinent events that occurred prior to the C&D, the most important being that Pabst submitted their design to Portland for approval, which is not even mentioned here.
“one is a god damned city and the other is a brewery.” – as mentioned, the design in question is for music festival in the city of Portland, not a brewery. When looking at the question of confusion, that matters.
“first off, they’re obviously similar. So similar that moronic visitors or residents of the city of Portland will somehow think that Pabst bought their town, or vice versa? Probably not.” – Pabst created the design with the Portland sign in mind, an homage perhaps, and submitted for permission from Portland to use the ad. The act of Pabst seeking permission is acknowledgement that the designs are similar. It may be moronic to think Pabst bought the city, but it would not be a jump to think that the city sponsored, or was somehow associated with, the festival. Further, when a sponsor’s product is for adults only, any association of the event with the city of Portland may raise even more concerns.
“It may be that the city had planned on using images of the sign on shirts and clothing and the like, but even if that’s the case, it wouldn’t conflict with Pabst putting on a concert. Pabst and the city of Portland aren’t competing with one another in any kind of marketplace, so the whole dispute was fallacious to begin with.” – Saying they aren’t competitors is as misleading as saying that no one will confuse the city with the brewery. We’re not talking beer or t-shirts, were talking about Pabst’s use of a design that they acknowledge is based on an iconic design owned by the city of Portland for use at an event within that same city.
There are more than enough trademark owners who abuse the system and overreach to fill these pages over and over. In this case it seems like key facts were left out, which ends up portraying a reasonable effort to balance IP rights and public use as an overreach by a trademark bully.
The most interesting thing that I took from this is that Portland apparently has a process in place to grant permission to private parties who want to incorporate the city’s iconic images into their advertising. That seems unique and forward thinking, and something that TP and its readers could really support.
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“In this case it seems like key facts were left out, which ends up portraying a reasonable effort to balance IP rights and public use as an overreach by a trademark bully”
I actually don’t see how your clarifications change anything the article says at all. The implications of them are acknowledged and discussed there.
Whether or not it’s a “reasonable effort to balance IP rights and public use” is a matter of opinion. I don’t really think it is. But I agree with you that on the scale of IP law problems, this ranks fairly low.
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It’s unfortunate that you don’t recognize the effect that the omissions have on the article, and the teenie bit of credibility it drains from the TD reservoir. The subject may rank low in the grand scheme of IP problems, but the story does highlight some of the issues I have with TD lately. Hopefully those issues will be limited to stories about beer.
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The act of Pabst double checking with Portland that the designs aren’t too similar is an act of good faith.
FTFY, YW.
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The act of Pabst double checking with Portland that the designs aren’t too similar is an act of good faith.
FTFY, YW.
Is commercial application an absolutely requirement for a trademark under US law? In Canada, all a government has to do is let the trademark office know that they have “adopted” a mark and then no one else is allowed to use it. The US might not go THAT far, but still, I’d be surprised if governments aren’t allowed to register trademarks even when they aren’t being used for “commercial” purposes.
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The US doesn’t have anything like the kind of protection granted for “public authority” trademarks like Canada grants under Section 9(1)(n)(iii).
However, the US follows common law, which means there are certain rights gained simply by using a trademark in the US without having to file an application or registration. How the Portland mark is actually “used” in this case is subject to debate.
Does Portland actually own a US registration for the design? If they don’t they should consider filing an application.
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“Is commercial application an absolutely requirement for a trademark under US law?”
Yes (although it doesn’t have to be used in a profit-making enterprise.) The entire purpose of trademarks is to prevent consumer confusion so a person doesn’t deal with company A while thinking it was company B.
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Sorry, I think I misunderstood the question. Use of a mark is essential for gaining trademark rights, but as John says government entities are allowed to register trademarks even when they aren’t being used for commercial purposes.
I’m actually glad we don’t have the public entity category thing here in the US. Those marks get cited against new applicants even if the goods and services are completely different. Worse, the marks remain perpetually as applications and never register (I guess because no use is required and renewal would be impossible) so they stay active on in the Canadian database long after the entity has stopped using them.
A little history of the sign
The sign was originally not for the city of Portland. It was originally put up in 1940 and has been used by a number of different businesses over the years. The stag (and the words “White Stag” was added in 1959 when the White Stag clothing company purchased it. Portlanders fell in love with it in no small part because the company would turn on a red light on the stag’s nose during christmastime.
The sign was designated a historic landmark in 1977, and the city purchased it in 2010, when they changed the lettering on it from “White Stag” to “Portland Oregon” (after a brief period of reading “Made in Oregon” to advertise a chain of stores owned by the same company that owns White Stag). The stag that appears on the sign now is, I believe, still the trademark of White Stag and is being used under license.
I understand the worry about confusion. After all, a horse bears a huge amount of similarities to a stag. *rolls eyes* Now I’m just waiting for Portland, Oregon to sue Portland, Maine over the greater similarities in their names.
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Since Portland, Oregon was intentionally named for Portland, Maine (it was almost Boston, Oregon), that would be a very interested lawsuit to watch.
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Definitely. Especially if Portland, OR are as forgetful of that fact as they are of trademark law. I can totally see the western Portland doing it on the basis that it’s the state capital and the eastern Portland isn’t, so they deserve the namemore for being ‘more important’.