Seattle Trademark History Tour, Part 4: The Old Rainier Brewery

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 4. You can find the other nine parts of the series (once they are published) by clicking here.

The Old Rainier Brewery

Image courtesy of BreweryGems.com

Wisconsin native Andrew Hemrich (the son of a master brewer from Germany) emigrated to Seattle in about 1883 and, with partner John Kopp, established the Bay View Brewing Company in what was originally a rickety barn-like structure at the base of Beacon Hill and on the corner of 9th and Hanford Street; then the site of a natural spring and now the site of an industrial zone next to Interstate 5.

In 1893, Bay View merged with two other breweries to form the Seattle Brewing & Malting Company, the flagship brand of which became RAINIER BEER, named for the mountain that dominated the view. As the Ninth Circuit described, the bottle featured a:

. . . peculiarly colored label in blue and red, containing at the top the words ‘The Seattle Brewing & Malting Co.’s’ in the center, at the right the word ‘Rainier’ above the word ‘Beer,’ [and] at the left a circle displaying a picture of Mt. Rainier . . .

The beer was a success, and quickly achieved distribution outside of Seattle, which is probably where it came to the attention of Fred Kostering, a Los Angeles Brewer. Kostering decided to imitate Rainier Beer’s trade dress. Kostering’s label bore a different product name (RHEINGOLD), a different brewery title (the “Los Angeles Brewing Co.”), and a picture of a waterfall in place of Mount Rainier. But everything else was the same: the color scheme, the shapes, the layout, the fonts, etc…

Seattle Brewing brought suit for trademark infringement and prevailed in the District Court. Kostering appealed to the Ninth Circuit. In Kostering v. Seattle Brewing & Malting Co., 116 F. 620 (9th Cir. Cal. June 06, 1902), the Court held that, although the labels certainly had differences, those variations were wholly insufficient to avoid consumer deception. Writing for the Court, Judge William Ball Gilbert (a distant relative of George Washington), held that:

A consumer who has been accustomed to purchase an article in a dress or package which has become familiar to him does not stop to read and examine. Many of the consumers of beer are unable to read, and many are foreigners, and unacquainted with the English language. All consumers, whether able to read or not, are in fact guided by the general appearance of the package or label which is before them.

Kostering was enjoined from further use of the strikingly similar labels.

After the lawsuit, the RAINIER BEER brand continued its success for a while, achieving international and overseas distribution in Canada, Hawaii, the Philippines, Singapore, and elsewhere. However, in 1915, Washington enacted prohibition. Seattle Brewing relocated to San Francisco, changed its name to the “Rainier Brewing Company,” and opened an expensive new factory just in time for the introduction of national prohibition in 1920. The company survived only by using its new facility to make soda and “near beer.”

Meanwhile, the original Seattle brewery (modernized but still in pretty much in the original location at the base of Beacon Hill) had been converted into a flour mill. Just after prohibition (1933), baseball impresario and brewer Emil Sick converted it back into a brewery and licensed the RAINIER BEER mark so that the beverage could once again be brewed in the shadow of its namesake. The brewery and the brand (which is still marketed although it’s unclear if it’s still available for purchase) were eventually sold to the Pabst Brewing Company, and the plant was closed in 1999. The building, now known as the “Old Rainier Brewery” serves as multi-purpose (and multi-colored) commercial and residential loft space. You can see it from Interstate 5 (on your left) as you come into town from the airport.

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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