Seattle Trademark History Tour, Part 7: Ostrea Lurida & the San Francisco Oyster House

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

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

Ostrea Lurida & the San Francisco Oyster House

Oysters and Seattle go way back.  The native Ostrea Lurida (common name: Olympia oyster) had been feeding the human denizens of Puget Sound for thousands of years before the first European set foot in the area. Once the Europeans did arrive, oysters became an important trade good between natives and settlers, and ultimately Washington became the main source of oysters for cities up and down the coast. Oysters were so important to Washington that the Bush and Callow Acts, which were intended to promote commercial oyster cultivation, were among the first major projects of the state’s new legislature in the 1890’s.

Oyster industries breed oyster restaurants, and Seattle had more than its share. In December 1911, restauranteur Lars Peterson secured what he thought would be the perfect location for an oyster eatery: 216 James Street. Peterson decided to brand the establishment as the SAN FRANCISCO OYSTER HOUSE. On December 15, he dutifully checked the records of the Washington secretary of state to make sure nobody else was using the name. Seeing no impediments, Peterson incorporated on December 20. Then he registered his incorporation papers and business name with the county clerk on December 22. Peterson prepared, carefully and deliberately, to open his business the following month. Peterson was acting in compliance with state law, which provided that:

No person or persons shall hereafter carry on, conduct, or transact business in this state under any assumed name or under any designation, name or style, corporate or otherwise… unless such person . . . shall file a certificate in the office of the county clerk … which certificate shall set forth the designation, name or style under which said business is to be conducted

Mihich was a less careful and less deliberate entrepreneur. He also had bad timing. During the seven day interim between the time Peterson had checked the state records and the time he registered his business name with the county clerk, Mihich checked the county records (on December 19, to be exact) to see if he could use the brand name SAN FRANCISCO OYSTER & CHOP HOUSE. Seeing nothing to prevent his use of this name, Mihich decided to dispense with the formalities of incorporation and registration of his business with the county. Instead, he had temporary cloth signs painted and opened for business right away. He didn’t have any permanent signs until the next month, and finally got around to registering with the county the month after that. His location was at 216 Cherry Street, exactly one block from Peterson’s not-yet-opened restaurant.

Peterson opened for business as planned in February. Then he sued Mihich. The parties stipulated that there was a likelihood of confusion, and the evidence apparently demonstrated that, despite the coincidence in timing, neither party was intentionally copying the other. So the only disputed issue was one of priority: one party had registered a name with the authorities first, but the other had opened for business under the name first. The trial court held that Mihich had priority because he was the first to use the mark in commerce. But in San Francisco Oyster House v. Mihich, 75 Wash. 274 (Wash. September 06, 1913), the Washington Supreme Court reversed. Peterson followed the rules; Mihich didn’t. Therefore, irrespective of when Mihich opened for business, Peterson was the first to acquire the legal right to use the name and acquire trademark rights.

The block straddled by the competing oyster houses is now dominated by the Pioneer Square Courtyard Marriott. After 1914, Peterson moved his business to 714 First Avenue, inside the Right Hotel (now a parking garage), and renamed it the Lion Oyster House. By the 1920’s, the native Olympia oysters had been over-harvested, but the Washington oyster industry continued to grow with non-native Japanese Pacific oysters, which thrived in the environment after they were seeded in the local beds. Today, Washington remains the largest producer of hatchery-reared and farmed shellfish in the United States.

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.

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition
Contact
more
less

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.