What’s in a name? Well quite a bit if you’re a business that has spent many years and countless dollars trying to get people to remember it.
For instance, if I say Microsoft, you think about how much your computer sucks. If I say Nike, you think of little slave children making wonderful sporting goods. If I say Budweiser, you think of all the other beers you’d rather drink.
Well, the Oregon Beer Company, makers of Rogue Ales, wants to make sure you think about their rather mediocre beers whenever anyone says “Rogue,” and that means preventing others from muddying the waters by using the Rogue name.
It’s in this spirit that they’ve filed suit against the restaurant Rogue 24, a high-end eatery in Washington D.C. created by James Beard Award winning chef RJ Cooper.
You see, the Oregon Brewing Company is in the restaurant business as well, operating eleven West Coast brew pubs and restaurants that carry the Rogue name, and they hold the trademark on the word “Rogue” for use in restaurants, pubs and adult beverages.
They are simply protecting their turf, which they have a legal right to do. Actually it’s more than a right, it’s kind of an obligation. If you don’t go after people who are using your trademark, you weaken your claim to it by letting them get away with it.
If Rogue wants to keep the clear right to be the only “Rogue” restaurant, pub or adult beverage in town (and their products are sold across America, including in Washington D.C., so that “town” could be anywhere), then they have to go after places like Rogue 24, even if it’s kind of a dick move.
And, according to the Washington City Paper, they are definitely going for maximum dickage:
Oregon Brewing Company wants Rogue 24 to stop using the word “Rogue” and destroy all signs, menus, literature, and other materials branded with the mark. (No word on what that might mean for Cooper’s Rogue tattoo.) Oregon Brewing Company is also asking the restaurant to transfer the domain name rogue24.com, and for unspecified additional “injunctive relief.”
My gut tells me the Oregon Brewing Company will win this dispute fairly easily, and the two years Rogue 24 has spent building their brand will be undone by the lawyers.
That’s a shame. Not that the restaurant will have to find a new identity (that sucks, but the one they decided to use was already spoken for – it’s like someone building a house in your front yard and then feeling sorry for telling them to knock it down). It’s a shame that there were lawyers involved at all.
A brewer once told me a story of having to change the name of one of his new beers, because it just happened to contain a word found in a more established brew in a different part of the country. This trademark dispute wasn’t settled by lawyers in a courtroom, it was settled between two guys in an elevator at the Craft Brewers Conference.
I’d love it if the craft beer industry could continue to be a place where people can settle disputes in a civil manner without getting the lawyers involved, but that’s a silly dream.
As the industry grows into the billions of dollars and craft beer brands become household names, we’re going to see more and more legal bickering, even if it’s well founded.
Maybe the Brewers Association can create a beer court, where brewers who have a dispute sit down with judge Charlie Papazian and “relax and have a home brew” and sort everything out amicably.
That’s the kind of Bar Association I think America needs more of.
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Beer & Whiskey Brothers 
I guess the easy and most sensible thing is to not drink their beer if they are getting all high and mighty on the name “rogue”. Screw them and forgetting who they are or that they are a soon to be forgotten brewery.
I stopped drinking their beers a while ago, Tim, so I guess all I can do eat at the restaurant when I visit DC. looks like a pretty awesome place!
Regardless of whether or not we like their beers. (Not all of them are bad.) They have to protect their brand. What if Rogue 24 grows into a national chain with restaurants in Rogue’s backyard? Or, even worse, what if a multinational conglomerate buys them out and protects them with a army of lawyers? Rogue has to protect their brand.
I agree not all of their beers are bad, Zac, but I grew tired of the fact they most of them taste the same – too much Pacman!
Jim, the proprietors of Rogue 24 should have done their due diligence. I don’t know when things were filed for either company (too lazy to check the USPTO) but that’s part of the process of creating your business. I feel bad that Rogue has to spend their money protecting their mark.
Also, did Rogue send a C&D? Maybe they tried to go the friendly route?
I’m lazy as well, so I didn’t dig beyond the article, but I agree that you should always make sure you have clear rights to a name before using it for business. Clearly, the Oregon Brewing Company owns the trademark for the name used in this context, and it does indeed suck that they’re forced to blow their dough going after a guy who it looks like didn’t do his homework.
After a quick search, OBC has had the marks long before Rogue 24 went into business. Pretty clear cut to me.
My brother used to have a haircut that his barber called the “rogue.” Today, well, good thing that he’s bald or else he’d be sued.
I get that with the Net, we’re all this connected country and all, but the brewery restaurants are 3000 miles from the one that Rogue sued. When does distance become relevant in mitigating confusion?
For that matter, is Rogue going to start suing cemeteries? Whole lotta dead guys out there.
Rogue doesn’t have a trademark in haircare or barbershops so they couldn’t sue that guy. The fact is that Rogue did what it’s suppose to do to protect their brand in the industry and classes that it operates in. It’s their brand, creative, and legal right to protect their intellectual property.
Yup – if they didn’t have the TM for restaurants and pubs, this would be a whole other story. But they do, and so they’re compelled to protect it.
Ha ha – Dead Guys!
Rogue is kind of forced into action here, because if they don’t go after Rogue24 now, they could have difficulty compelling them (or any other eatery who decides to use the Rogue moniker) to change their name in the future.
If Rogue24 went unchallenged and operated under the name for 10 years until Rogue decided it 3was time to open a brew pub in DC, they would have a harder time claiming the Rogue name and forcing the other guys to stop using it (which is their right – trademarks exist to eliminate brand confusion), because Rogue24 had been using it unchallenged for a decade and had established a brand of their own.
In many way, the guys in DC are the dicks, because Rogue HAS to address this to protect their brand, even if they really don’t want to spend the time and money to do so.
I don’t understand how this happens. Doesn’t anyone do a Google search when choosing a name for their brand? Here, let me help: http://lmgtfy.com/?q=Rogue
Thank you for that, Zac. I was about to launch a cartoon television series about a compact SUV that brews beer and owns a gym – now I know to find another name!
Not this crap again. As with all the other cases of similar name/different domain suits, they end in sour grapes and bad press. I guess Rogue is indeed that full of themselves.
Anyone know if Rogue Ales politely approached Rogue 24 first? Now that I’ve caught up, it seems Rogue Ales is in the right, but this seems like a harsh ask unless Rogue 24 pretty much told them to stick it before this action.
I can’t find anything else about this dust up except for the article I’ve linked to. I did, however, find an article on Eater DC about Rogue24’s rather prickly “dining contract” that you must sign before eating there. http://dc.eater.com/archives/2011/08/15/here-is-the-contract-you-need-to-sign-to-eat-at-rogue-24.php
It looks like they enjoy a nice legal document themselves…
To respond as the dick lawyer (actually recovering litigator) that I am or as the craft beer evangelist that I proclaim myself to be?……
Maybe I can do both.
I’ve got to side with the Beard Beer Clan here despite the fact that I’m still in a quasi-apoplectic state of shock that such a beer exists and I remain mystified at my purchase of the latest Voodoo Series (which I imagine is actually a series) Chocolate Banana PB Brew. No brainer – Oregon Brewing has no choice but to protect their mark and the demands listed regarding destruction of all materials containing the infringing mark is standard issue IP Litigation and Procedure 101. For whatever reason, Rogue24 didn’t do their homework before selecting a name. That’s a shame but it’s all on them. A very modest investment in a low level IP attorney at that stage would have prevented the necessary engagement of higher priced dick lawyers now.
As for the Elevator Detente at the Craft Beer Conference (guessing between Adam Avery and Vinnie Cilurzo), that was a win-win on a couple levels resulting a pretty nice brew but I don’t see how this one could have benefited from a similar vertical ride – even all the way to the top of the Burge Al Arab on Dubai)
Cheers!
This one could’ve been settled over the 24 course “journey” menu at Rogue24 – I imagine it takes a while!
Oh, I get that, from a legal perspective, this response is justified.
What I don’t get is how 2 restaurants at opposite edges of a continent can be regarded as competitors. I reject the underlying assumption of scarcity.
If Rogue24 were a brewpub then I’d see a conflict, given that Rogue Beer is a national brand, but the supposition that the restaurant is infringing on others with a simillar name that are 3000 miles away seems like a stretch.
But the Rogue brand isn’t 3,000 miles away – they sell their beers in the same zipcode that Rogue24 calls home, and who knows if they don’t have plans to expand out East. If they do (or if they simply want to opportunity to do so in the future) then Rogue24 is definitely muddying the waters.
I find the recent spate of copyrighting and patenting tiresome. In this case a restaurant goer in DC is very unlikely to confuse it w/ a brewery in OR (if (s)he even knows about the brewery in OR). And if (s)he does, how much would it cut into the brewery’s profits? Not nearly as much as a law suit I’d bet. I call bullshit on this one.
Well if that’s the law, then the law is ironic.
I guess ignorance of the law is no defense, but if you are ever arrested, you are read your Miranda rights; just in case you were ignorant of that law.
The law says a person’s signature on a contract isn’t binding if they were intoxicated during signing, but everyday police have people sign citations for DUIs.
Now there’s a company which actually selected the name ROUGE as a trademark, and in a fit of incomprehensible irony, they sue another company for unprincipled and deceitful conduct under the flag of righteousness.
So I guess the name Rogue isn’t as edgy or playfully mischievous as they want the consumer to believe. How does that align with the Federal Truth in Labeling laws? I think I need a drink.
At first I felt a little bit bad for Rogue 24, until I found out they were the a-holes with the dining contract. Now I say they can go f themselves (which is what I said when I first read about their dining contract).