Seattle Trademark History Tour, Part 3: The Feuding Fremont Undertakers

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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Foley Hoag LLP - Trademark, Copyright & Unfair Competition

This year, the great city of Seattle, Washington is the location of both the International Trademark Association Annual Meeting (May 19-23) and the American Intellectual Property Law Association Spring Meeting (May 15-17). If you are one of the many lawyers attending these events and you want a Seattle trademark experience, you could do the obvious and visit locations associated with the city’s famous modern brands. Alternatively, you could go back in time a bit further.

Washington became the 42nd state in 1889, the same year the Great Seattle Fire destroyed much of the city. A combination of new railroad lines and post-fire construction led to a boom in population and commercial activity. On July 17, 1897, this already-promising economic climate went into hyper-drive when the S.S. Portland arrived from Alaska, heralding the beginning of the Klondike gold rush. The trademark disputes that arose from this economic activity started working their way into the published opinions of the Ninth Circuit and the newly christened Washington Supreme Court in the first decades of the twentieth century.

We took a look at the first ten trademark disputes involving the city of Seattle (which date from the turn of the century up to the start of World War I). To our delight, we found them riddled with connections to celebrities, shootouts, world politics and the multicultural fabric of migration in the American west. So, if you need something to do in Seattle, why not review our ten part Seattle Trademark History series. You can even create your own Seattle Trademark History Tour by consulting our handy map (also reprinted at the end of this post) and visiting one of the locations that gave rise to these disputes. This is Part 3. You can find the other nine parts of the series (once they are published) by clicking here.

The Feuding Fremont Undertakers

Carton’s Fremont Undertaker Shop circa 1910, by James P. Lee; from the collection of the University of Washington Library

The feud between Jacob Bleitz and Matthew Carton probably started as soon as they met. Carton moved to Seattle from Oklahoma and, in 1903, opened an undertaking business in the Fremont section of the city, where he became known by the trade name FREMONT UNDERTAKER. Bleitz (originally from Wichita, Kansas) had an undertaker business across town in the Green Lake neighborhood, but in 1906 he moved his business to Fremont, only a few blocks away from Carton.

The two did not get along. For a time, Bleitz antagonized Carton by changing the Bleitz Funeral Home sign to include the words: “Fremont Undertaking Company,” but he stopped doing this by the end of 1906. Carton retaliated by allegedly telling anyone who would listen that:

Bleitz is not a fit man to associate with decent people. He has another wife back east, and a wife and child here. He has been in jail two or three years back east. I have the documents to prove all this.

This caused Bleitz to sue Carton for defamation, and Bleitz won a jury trial. But on appeal, the Washington Supreme Court identified a reversible error. The witnesses had testified that Carton accused Bleitz of having another “woman,” not another “wife.” Having another “wife” was a crime (bigamy), but having another “woman” was not, and only a crime could be defamatory per se. Also, at the time, any variance between the pleading and proof was fatal to a defamation action. So, in Bleitz v. Carton, 49 Wash. 545 (Wash. June 3, 1908), the verdict was overturned. Justice Mark Fullerton dissented, arguing that what Carton actually said was bad enough to be actionable and close enough to the pleadings.

In 1908, Carton sold his business to a Mr. Rosenburg. Rosenberg decided to continue the good will developed under Carton by maintaining the mark FREMONT UNDERTAKER. Meanwhile, Bleitz decided to continue the bad will, and perhaps indirectly get revenge on Carton, by changing his sign for a second time to include the words “Fremont Undertaking Company.”

Rosenburg sued for unfair competition, and lost in the trial court. On appeal, Rosenburg argued that he and his predecessor were the first to use the trade name FREMONT UNDERTAKER, that Bleitz use of “Fremont Undertaking” was close enough to cause confusion, and that any rights Bleitz might have acquired when he first changed his sign back in 1906 (which he did briefly to antagonize Carton) had been abandoned. Rosenburg also argued that Bleitz had no special right to use the word “Fremont” simply because he was located in Fremont. Justice Fullerton got involved again, this time writing for the majority. In Rosenburg v. Fremont Undertaking Co., 63 Wash. 52 (Wash. April 10, 1911), Justice Fullerton agreed with Rosenburg’s position and reversed, remanding the matter with an order for the lower court to enjoin Bleitz from further use of confusingly similar names.

Rosenburg’s (and before him Carton’s) building was located at what used to be the corner of 32nd and Fremont Ave. The building was likely demolished just after World War I to make way for the Fremont Bridge, and the location is now part of Google’s Seattle Campus. Rosenburg was represented in the case by Seattle legal pillar Vivian Carkeek. To this day, students at his alma mater, the University of Washington School of Law, can still win the “Vivian Carkeek” prize for best contribution to the law review.

The Bleitz funeral home was located on a plot abutting what was then Kilborne Street and is now located just about at 36th Street and Phinney Ave., a short walk from Seattle’s Lenin Statue. In 1921, probably unable to stomach staying in Fremont without being able to stick it to Rosenburg, Bleitz moved across the Fremont Bridge to 316 Florentia Street (the Queen Anne neighborhood), where he built the architecturally iconic Bleitz Funeral Home building. Last year, the building was designated as a landmark by the Seattle Landmarks Preservation board, and the property recently sold for $4.2 million dollars. It is reportedly being converted into office space.

Read the rest of the Seattle Trademark History Tour Series:

Special thanks to the following excellent sources, all of which were consulted for this blog series: Gary Flynn’s Brewerygems.com; Historylink.org, a free online encyclopedia of Washington state history; Blackpast.org, an online reference guide to African American History; librarian Alan Michelson’s Pacific Coast Architecture Database; the University of Washington library digital collection; the Orbis Cascade Alliance’s Archive West; Lost Restaurants of Seattle by Chuck Flood; the Pacific Shellfish Institute website; Historian Rob Ketcherside’s ba-kground blog; the Capitol Hill Seattle Blog; the DorpatSharrardLomont blog Seattle Now & Then Series; the Seattle Times; the Seattle Department of Neighborhoods website; and Seattle-Tacoma radio station KNKX.

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