United States: Seattle Trademark History Tour, Part 7: Ostrea Lurida & The San Francisco Oyster House

Last Updated: May 16 2018
Article by David A. Kluft

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:

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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