Seattle Trademark History Tour, Part 6: Old German Lager Won’t Give You a Headache

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

Old German Lager Won’t Give You a Headache

In 1902, Samuel S. Loeb was President of the Tacoma’s Milwaukee Brewery, but he had plans for a bigger facility in Seattle.  Construction of his new brewery began in 1902 at 4202 8th Avenue (now 4200 Airport Way). After construction was delayed by arson (possibly motivated by antisemitism – Loeb and his partners were the only Jewish brewers in the Pacific Northwest), the Independent Brewing Company of Seattle opened for business in 1904.

In 1910, Independent Brewing introduced the OLD GERMAN LAGER brand. The product was nicknamed “Fatherland Beer” and its slogan was “Prosit! Es Giebt Kein Kopeweh,” which means “Good Health! It won’t give you a headache.” OLD GERMAN LAGER soon became the flagship product of the company, and was a popular quaff down the western seaboard as far as San Francisco. The OLD GERMAN LAGER label featured a landscape tableau, including an inn bearing the name of the beverage, with guests drinking outside underneath its sign; a group of monks at a table in a cellar sitting near three barrels of beer bearing the product name, and various workers standing over boiling kettles in bucolic settings.

Independent Brewing’s Old German Lager Label, Courtesy of BreweryGems.com

Does that sound familiar?  It does if your last name is Heileman. The G. Heileman Brewing Company of La Crosse, Wisconsin, manufacturer of the OLD STYLE LAGER brand, got wind of the OLD GERMAN LAGER label and claimed it was a copy of their own label. The OLD STYLE LAGER label, like the OLD GERMAN LAGER label, featured inn patrons drinking under a sign bearing the product name, monks sitting at a table in a cellar next to three labeled barrels of beer, and boiling kettles scenes. G. Heileman brought suit in the Western District of Washington, asserting claims for trademark infringement and unfair competition, and alleging that Independent Brewing had copied its label in order to deceive consumers.

Heileman’s Old Style Lager Label

The Western District dismissed the action on the ground that the labels, while they bore certain similarities, were not at all identical, as any side by side comparison readily revealed.  But in G. Heileman Brewing Co. v. Independent Brewing Co., 191 F. 489 (9th Cir. 1911), the Ninth Circuit reversed. Oregon Judge Charles Wolverton (sitting by designation) held:

Now, to one scanning the detailed description of these two Dutch scenes, or laying the pictures side by side, there could be no trouble in distinguishing the one from the other. But this is not the test. Will confusion result to the purchasing public by the use of the two not brought into direct or special comparison? Would the ordinary customer applying at the counter for ‘Old Style Lager’ observing the care customary with purchases in that way, be likely to be deceived or misled into buying ‘Old German Lager,” if it was offered him marked with defendant’s label? We are impressed that he would.

The Ninth Circuit also rejected Independent Brewing’s alternative argument that the Heileman label was deceiving customers by falsely claiming, in the lower right hand corner, that the label had a registered copyrighted when in fact it did not. The Court held that this was irrelevant to the trademark proceedings, because no consumer was injured by the alleged copyright misrepresentation.

In 1912, in the wake of the ruling, Independent Brewing changed its label. Many more changes were to come.  In 1915, Loeb moved the company to San Francisco just ahead of the effective date of state-wide prohibition in Washington (which was effective January 1, 1916). Upon discovery that there already was an “Independent Brewing Company” in San Francisco, Loeb changed the name of his operation to the “Old German Lager Brewing Company.”  But when the United Stated entered World War I, the word “German” had to go, so Loeb changed the company name again to “Old Lager Brewing Co.” and the name of the product to OLD ORIGINAL LAGER. Loeb got all of these changes implemented just in time for nationwide prohibition to shut him down entirely in 1920. By 1924, Loeb was out of the beer game and selling real estate in Los Angeles.

The G. Heileman Brewing Co., which had been founded by German immigrant Gottlieb Heileman in 1872, survived prohibition and was acquired by Stroh Brewery Company in 1995. Stroh in turn was acquired by the Pabst Brewing Company in 1999, and Pabst still markets Heileman’s Old Style Beer. Ironically, the OLD STYLE LAGER brand itself was the product of an even earlier trademark dispute: Heileman had called the product OLD TIMES LAGER until 1899, when he got a cease and desist letter from another brewer.

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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