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Rogue Ales producer Oregon Brewing Company filed a lawsuit against Rogue 24 and chef/owner R.J. Cooper last week for trademark infringement.
Oregon Brewing Company, which operates 11 restaurants and brewpubs with the mark “Rogue” on the West Coast, owns the trademark “Rogue” for restaurants, pubs, and alcoholic beverages and has been using the name since 1989, according to the complaint (see below). The company’s beers are available throughout the D.C. area, and according to the suit, have also been sold at Rogue 24, which opened in July 2011.
The lawsuit, filed Thursday in U.S. District Court for the District of Columbia, says Rogue 24 refers to itself simply as “Rogue” on its menu and in its logo and that the restaurant also offers microbrews. Oregon Brewing Company argues this is likely to cause confusion with its brand.
Cooper declined to comment on the lawsuit, which he says he still hasn’t officially been served with. UPDATE: Shortly after this post was published, Cooper emailed Y&H: “Your story is completely wrong. We never have sold any rogue brewery products nor spirits in the restaurant. Get your facts straight before you write.” (Y&H had sent Cooper a copy of the complaint on Friday, but he hadn’t contradicted the brewery’s assertion that Rogue 24, the restaurant, sold Rogue, the beer, until now.) Y&H has left a message with Oregon Brewing Company’s lawyer on that point and will update again as needed.
Oregon Brewing Company wants Rogue 24 to stop using the word “Rogue” and destroy all signs, menus, literature, and other materials branded with the mark. (No word on what that might mean for Cooper’s Rogue tattoo.) Oregon Brewing Company is also asking the restaurant to transfer the domain name rogue24.com, and for unspecified additional “injunctive relief.”
So, is there a case? D.C. trademark attorney Alex Butterman of Staas & Halsey, who’s unaffiliated with the lawsuit, says the word “Rogue” in reference to beer and restaurants is distinctive and unique enough that it would be protectable as a trademark. Butterman adds that the Oregon Brewing Company will still have to show that there is likelihood of confusion between the brands, which is easier to do if their products or services are in the same market.
“It’s not only how similar the marks are, but how similar are the channels of trade,” Butterman says. “How likely are the same consumers to see the two marks and believe that one is associated with the other?”
Photo by Jessica Sidman