Seattle Trademark History Tour, Part 9: The Milk from Contented Cows

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

“The Milk from Contented Cows”

In 1899, North Carolinian Elbridge Amos Stuart founded the Pacific Coast Condensed Milk Company in Kent, Washington.  In 1901, he changed the name to the Carnation Evaporated Milk Company, and began selling CARNATION brand, the milk “from contented cows.” Because fresh milk was not universally available, the product filled a market need and flew off the shelves.

Just 19 miles up the road in Seattle, Charles Frye was packing meat. Frye had moved to Seattle from Iowa in 1885 and started a meat packing company, which boomed into a major food empire during the Klondike gold rush. Frye also opened retail markets, where he sold food under the WILD ROSE brand. Profits were so high that Frye took up art collecting as a hobby.

In 1915, Frye decided to add condensed milk to his array of WILD ROSE brand products. The label he adopted gave Elbridge Stuart fits. The words on the label were completely different than the CARNATION label, but the trade dress was similar. It was divided into two parts, one red and one white (just like the CARNATION label); it featured a cluster of three flowers placed on the border between the red and white sections (just like the CARNATION label); and was flanked by two scepters running vertically from the top to the bottom of the can (the CARNATION label had torches in the same place).

Frye’s label for other Wild Rose products was black and red with a single rose

Stuart filed suit against Frye for unfair competition and requested an injunction. Frye opposed, arguing that customers buy milk products based on their names, and the names here were not similar. Rather, the only thing that was similar was the color scheme. In addition, Frye presented six affidavits from retailers avowing to a total absence of confusion since WILD ROSE milk was introduced. Nevertheless, the lower court issued an injunction against Frye. Part of this decision was no doubt motivated by the fact that Frye’s other WILD ROSE products featured a black and red label with a single rose, while only the new condensed milk product veered into the trade dress territory previously occupied by the CARNATION brand.

On Appeal, the Washington Supreme Court agreed that trade dress could be protected by trademark law, and also agreed that color could be a protected element when considered in combination with other elements. However, Justice Overton Ellis, writing for the Court in Pacific Coast Condensed Milk Co. v. Frye & Co., 85 Wash. 133 (Wash. April 17, 1915), disagreed with the lower court on two grounds.

First, Justice Ellis noted that the labels bore prominent and clearly distinct brand names and manufacturer names, and held that this was sufficient to help a consumer of ordinary prudence distinguish the products. Anyone paying even a little bit of attention can see that the word marks CARNATION and WILD ROSE look and sound nothing alike. As to less careful consumers who may nevertheless have been confused, the Court held that the defendant had no duty to educate “the negligent or the indifferent,” and that the plaintiff had no right “to a monopoly of the trade of the careless.”

Second, Justice Ellis articulated an aesthetic functionality argument. The main element the labels clearly had in common was a color scheme, and “similarity in color alone is not sufficient to constitute an infringement.” The Court continued:

Primary colors are few, and … those suitable for light products, such as milk, are even more limited. To the allow them to be appropriated as distinguishing marks would foster monopoly by foreclosing the use by others of any tasty dress.

Moreover, such monopolization would quickly lead to a depletion of available colors for newcomers, thus stifling competition. On these grounds, the Washington Supreme Court reversed and dissolved the injunction. By the way, “tasty dress” is not a typo.  Judge Ellis appears to have invented the term to describe what courts back east were calling “trade dress.” His alternative term was adopted by a few west coast courts for a while, but faded into nonexistence by the 1950s.

Anyway, the adverse ruling didn’t do too much damage to the CARNATION brand, which has thrived ever since and was acquired by Nestle in 1985. The Frye business also continued to thrive. Charles Frye died in 1940, after which his extensive art collection was stored in the main Frye meat packing plant, a huge complex located at the corner of Walker and 8th Avenue, south of downtown and just north of Boeing Field.

On February 18, 1943, office workers in the Smith Tower (still the tallest building on the West Coast at the time) noticed an odd site – an airplane bigger than they had ever seen leaking smoke and dropping towards the ground. This is how Boeing’s B-29 Superfortress (until then a closely guarded military secret) was introduced to the world. The prototype bomber crashed into the meat packing plant, killing the test pilot (ironically a vegetarian) and about 30 meat packers. After the crash, Frye’s art was removed from the ruins and found its way to a new home: the Frye Art Museum (a/k/a “the Frye”), which first opened its doors in 1952, and remains one of Seattle’s premiere cultural institutions.

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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