Trademarks exist so that companies can build up brand recognition in the marketplace and protect that brand. It's a powerful tool for companies looking to establish their brand in consumers' minds. As such, trademarks have some limits; companies don't have absolute control over a name or logo--only in areas where it might plausibly confuse customers. If you make an alcoholic beverage, you could protect your mark against other companies in that realm. We’ve seen examples of breweries and wineries suing each other over contested marks, for example. But if a paper-clip manufacturer came along and wanted to use a similar mark, they would be allowed to do so since customers are not going to confuse the two companies.

The government grants trademarks provisionally—companies must maintain and protect their marks in order to keep them active. To do this, companies like Old Town sign up for services that monitor new applications so they can defend their trademarks. About two and a half years ago, Milne found out that the City of Portland had applied for a mark using the leaping stag for a wide range of products, including beer, crowlers, and other alcohol-related items--along with many products that weren't related at all to beer. When Old Town Brewing contested the city’s blanke application the USPTO had no choice but to reject it.

Here’s where the story gets weird. Milne recognized that a lot of the products listed in the application wouldn’t violate his alcohol-related use of the mark, and so he went to the city to try to come to a compromise—he would happily support their application for non-beer stuff. Since the city didn’t have a leg to stand on, you’d think this would be where things ended. They'd remove the alcohol-related items from the list and re-apply, with Old Town's blessing. Instead, the city told Milne that they weren’t interested in compromise. Indeed, they wanted the mark specifically for alcohol because they had been in discussion with Maker’s Mark, the bourbon distillery, and Anheuser-Busch InBev for licensing deals. (This was confirmed by Bryant Enge of the Bureau of Internal Business Services in an interview by KOIN on Thursday.)

The impasse led to a protracted battle in which Old Town Brewing tried to work with the city and the city effectively told Old Town to take a short hike off a tall building. Lawyers exchanged letters, and lawyers’ fees went up and up. I met with Adam Milne last week at the brewery and he showed me some of the correspondence. He hasn’t sat down to calculate the precise figure he's spent on lawyers’ fees, but it's “in the tens of thousands.” In all, the city has applied three times to the USPTO and been rejected three times. The city can now—and is apparently still planning to—appeal. The point to all of this is to bleed Milne until he gives up—a fact confirmed during one of their meetings. “They told us they would spend whatever it takes,” he told me. Hey, if you can’t beat ‘em in court, beat ‘em with your bank account.

The reason all of this is coming out now has to do with that “incontestable” designation. Milne has reached the point where he can’t afford an endless legal battle—and now that the mark is incontestable his case is even stronger. Even though Old Town Brewing must continue to work with the city, he felt like his only recourse was to make the battle public. Such a course carries a fair amount of future risk for the business, which is after all a Portland business in the city's jurisdiction (beyond permitting and oversight, it turns out the city is even the prime lender to Milne). Over the course of years, Milne has had multiple meetings with the city, met once with Mayor Wheeler, and had exchanged legal requests—all to no effect. Finally, two weeks ago, Milne reached out one more time to the city to resolve the matter, but they refused to respond to his requests.

The city's position is legally untenable. They argue that the whole logo on the iconic sign--the stag, the outline of the state, and the city's name--constitute an entirely separate and trademarkable logo. Yet not only has the USPTO disagreed three times, but when Anheuser-Busch used a very similar version of that logo in the past, they were forced to discontinue using it once Old Town sent them a cease-and-desist letter. If this seems like even a marginal close call in your mind, imagine substituting the white stag with a Nike swoosh. How well do you think that would go down? The city is offering a public-relations answer to a legal question, and even on that score it doesn't pass the smell test.