Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1268887
`
`Filing date:
`
`02/28/2023
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`91283021
`
`Party
`
`Correspondence
`address
`
`Plaintiff
`Karen Becker Edson
`
`DELFINA HOMEN
`MILLER NASH LLP
`111 SW FIFTH AVE
`SUITE 3400
`PORTLAND, OR 97204
`UNITED STATES
`Primary email: trademark@millernash.com
`503-224-5858
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Other Motions/Submissions
`
`Delfina Homen
`
`patrick.racine@millernash.com
`
`/Delfina Homen/
`
`02/28/2023
`
`Attachments
`
`2022-12-16 2 Complaint and Jury Trial -- Edson v. ORB.pdf(5787917 bytes )
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.2 Page 1 of 54
`
`
`
`Christopher M. Von Maack (10468)
` vonmaack@mvmlegal.com
`Craig M. Hansen (18202)
` hansen@mvmlegal.com
`MCNEILL | VON MAACK
`175 South Main Street, Suite 1050
`Salt Lake City, Utah 84111
`Telephone: 801.823.6464
`
`Attorneys for Plaintiff Karen Becker Edson
`
`IN THE UNITED STATES DISTRICT COURT
`
`DISTRICT OF UTAH, CENTRAL DIVISION
`
`KAREN BECKER EDSON,
`
`Plaintiff,
`
`v.
`
`OGDEN RIVER BREWING, LLC dba
`BECKERS PREMIUM LAGER CO. and
`LOTUS CRAFT, LLC,
`
`Defendants.
`
`COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`
`Case No. 2:22-cv-00778-TC
`
`Honorable Tena Campbell
`
`Pursuant to Rule 8(a) of the Federal Rules of Civil Procedure, Plaintiff Karen Becker
`
`Edson (“Plaintiff” or “Ms. Edson”), by and through her attorneys, hereby complain against
`
`Defendants Ogden River Brewing, LLC d/b/a Beckers Premium Lager Co. (“ORB”) and Lotus
`
`Craft, LLC (“Lotus Craft”) (collectively, “Defendants”) as set forth below. See Fed. R. Civ. P.
`
`8(a).
`
`PRELIMINARY STATEMENT
`
`1.
`
`This is an action for unfair competition under Section 43(a) of the Lanham Act,
`
`15 U.S.C. § 1125(a), and for substantial and related claims of unfair competition, deceptive trade
`
`practices, and misappropriation of right of publicity under the statutory and common laws of the
`
`State of Utah, all arising from the Defendants’ unauthorized adoption and use of BECKER in
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.3 Page 2 of 54
`
`connection with the manufacture, distribution, marketing, advertising, promotion, offering for
`
`sale, and/or sale of Defendants’ beer, bar and restaurant services, and related goods and services.
`
`2.
`
`Plaintiff seeks injunctive and monetary relief.
`
`JURISDICTION
`
`3.
`
`This court has jurisdiction over this action pursuant to 15 U.S.C. § 1121, 28
`
`U.S.C. § 1331, and 28 U.S.C. § 1338(a) and (b), and pursuant to the principles of supplemental
`
`jurisdiction under 28 U.S.C. § 1367.
`
`VENUE
`
`4.
`
`Venue is proper in this district at least under 28 U.S.C. § 1391(b)(1), in that
`
`Defendants reside in this district; and under 28 U.S.C. § 1391(b)(2), in that a substantial part of
`
`the events or omissions giving rise to the claim occurred in this district.
`
`PARTIES
`
`5.
`
`6.
`
`Plaintiff is an individual who resides in Salt Lake City and is a citizen of Utah.
`
`Defendant ORB is a limited liability company formed under the laws of Utah with
`
`an address at 338 East South Temple, Ste B, Salt Lake City, Utah 84111.
`
`7.
`
`Defendant Lotus Craft is a limited liability company formed under the laws of
`
`Utah with an address at 338 East South Temple, Ste B, Salt Lake City, Utah 84111.
`
`A.
`
`Plaintiff, the Becker Family, and BECKER Beer
`
`
`
`FACTS
`
`8.
`
`Plaintiff is a member of the Becker Family, a well-known, highly respected Utah
`
`family with roots in the Ogden area dating back to the late 1800s.
`
`
`
`2
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.4 Page 3 of 54
`
`9.
`
`The patriarch of the Becker Family, John Stephan Becker, was born in 1827 in
`
`Baden, Germany. He learned about brewing in his teens and twenties while working at a small
`
`German brewery. He immigrated to the United States in the late 1850s, settling in Minnesota. In
`
`1863, John Becker and a partner started the Neufer & Becker Brewery. In 1883, he hired a
`
`partner, William C. Schellhas, and the brewery was renamed to Becker & Schellhas.
`
`10.
`
`In 1890, William Schellhas and John Becker’s eldest son, Gustav Becker, traveled
`
`to Ogden and opened the Schellhas Brewing Company, located at 19th Street and Lincoln
`
`Avenue in downtown Ogden. John Becker and his youngest son, Albert Becker, arrived in
`
`Ogden in 1892. The Beckers took full control of the brewery that year, renaming it Becker
`
`Brewing and Malting (hereinafter referred to as “Becker Brewing”).
`
`11.
`
`Becker Brewing was the most successful of all the Ogden breweries, if not all
`
`Utah breweries. Becker Brewing is the only brewery in Utah to have operated before, during, and
`
`after Prohibition. It was open longer than any other Utah brewery, staying in business for 75
`
`years and continuing to operate in a limited capacity for several years thereafter.
`
`12.
`
`Becker Brewing founders Gustav “Gus” Becker and Albert Becker, sons of John
`
`Becker, are storied characters in Utah history.
`
`13.
`
`In addition to running the brewery for most of its 75 years, Gus Becker served in
`
`the Utah National Guard and the Home Guard, becoming one of only 12 people to receive the
`
`American Legion Medal for Distinguished Service. He was a leading Utah industrialist, running
`
`the brewery while also serving as a director in several other Utah-based companies and as a
`
`member in the Eagles, Elks, and Masonic organizations. Gus welcomed and hosted U.S.
`
`presidents that came through Ogden, like William McKinley, Teddy Roosevelt, and William
`
`
`
`3
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.5 Page 4 of 54
`
`Howard Taft. Gus was even a world-renowned sharpshooter, winning numerous sharpshooting
`
`trophies including the Trapshooting Handicap Championship of America and setting a world
`
`handicap singles and doubles record for trapshooting. He was a member of the “4 B’s Trap
`
`Club” shooting team, along with the Browning Brothers and Archie Bigelow. Gus was named to
`
`the 1924 Olympic trap shooting team for the United States. He was inducted into the Utah Sports
`
`Hall of Fame in 1987 for trap shooting. His name is on display at the Utah Sports Hall of Fame
`
`with other Utah sports legends like Karl Malone of the Utah Jazz.
`
`Gustav Becker sighting down his rifle, c. 1937
`
`
`
`
`
`
`4
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.6 Page 5 of 54
`
`Gustav Becker, far left, as part of the “4 B’s Trap Club”, unknown date
`
`14.
`
`Albert Becker boasted a significant educational pedigree. First studying at
`
`
`
`Northwestern University, Albert went on to work and apprentice at several breweries and
`
`brewing programs, honing his craft in the process. He became Vice President of Becker Brewing
`
`at just 22 years old. In 1929, Albert was elected to the Utah House of Representatives, making
`
`him probably the first and last Utah brewery owner to serve in such a high position in Utah’s
`
`state government.
`
`
`
`5
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.7 Page 6 of 54
`
`Albert Becker inspecting the beer, undated
`
`
`
`
`
`Albert Becker, center, with Lou Gehrig and Babe Ruth, October 19, 1927
`
`15.
`
`Becker Brewing flourished in the early 1900s. By 1905, Becker Brewing claimed
`
`that “practically all the retailers in the city were using Becker beer in preference to any eastern
`
`brand, and the physicians of Ogden perhaps prescribe it in preference to any other brand.”
`
`
`
`6
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.8 Page 7 of 54
`
`Becker Brewing expanded into Idaho, Montana, Wyoming, and Nevada, creating demand its
`
`original Ogden facility could not meet. Becker Brewing hired then-famous brewery architect
`
`Louis Lehle out of Chicago to design a new plant in Ogden. What had started as a 500-barrel-a-
`
`year brewery in 1890 became a 25,000 barrel-a-year contender by 1906. Becker Brewing gave
`
`back to the brewing community too, working with the United States Department of Agriculture
`
`from 1905 to 1908 to help develop many new barley strains that are still used by brewers today.
`
`16.
`
`Becker Brewing was business savvy as well. Anticipating the passing of
`
`Prohibition, Becker Brewing was ready and able to quickly switch to production of near-beer,
`
`branded “Becco.” Becker Brewing supplemented lost income during Prohibition by bottling
`
`Coca-Cola, making ice, leasing cold-storage space, beginning a poultry-freezing business, and
`
`even converting its Wyoming brewery into a slaughterhouse and facility for raising badgers. This
`
`sort of ingenuity allowed Becker Brewing to become the only Utah brewery to survive
`
`Prohibition.
`
`17.
`
`Following Prohibition, Becker Brewing got back to the beer business, making
`
`beer in Ogden and reopening its Wyoming facility. Becker Brewing went from producing
`
`upwards of 10,000 barrels annually before Prohibition, to roughly 75,000 barrels per year
`
`afterward. Becker Brewing installed a new state-of-the-art canning line in its Ogden facility in
`
`the late 1930s, taking an expensive gamble on what was then considered a “fad” of canned beer.
`
`That gamble paid off, with Becker Brewing’s beer under several BECKER brands, including
`
`BECKER’S BEST, being canned and sold for decades more after this investment was made.
`
`
`
`7
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.9 Page 8 of 54
`
`
`
`Workers canning BECKER’S BEST beer, circa 1940s.
`
`18.
`
`Becker Brewing extensively advertised its beer throughout the life of the
`
`company, including under the marks BECKER’S, BECKER’S BEST, and OUT WEST IT’S
`
`BECKER’S. Becker Brewing also used the marks BECKER’S MELLOW and BECKER’S
`
`LAGER as well as various other BECKER’S-formative marks, like BECKER’S AMERICAN
`
`PILSNER.
`
`
`
`8
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.10 Page 9 of 54
`
`BECKER’S advertisement, 1946
`
`
`
`
`OUT WEST IT’S BECKER’S
`advertisement, 1944
`
`
`
`
`BECKER’S BEST advertistement, c. 1910
`
`Albert Becker’s son, Frederick “Fritz” Becker, was Plaintiff’s father. Formally
`
`
`BECKER’S BEST advertisement, 1938
`
`
`19.
`
`educated as a brewmaster, Fritz was very proud of Becker beer and wanted it promoted
`
`accordingly, telling employees, “If you throw a bottle of our beer out the car window after
`
`drinking it, make sure it lands label side up.” Plaintiff remembers going to the brewery with Fritz
`
`
`
`9
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.11 Page 10 of 54
`
`and checking the big vats of beer. Fritz was just getting started as brewmaster at Becker when he
`
`passed away the age of 32.
`
`20.
`
`Despite decades of success, by 1962 Becker Brewing was in financial trouble, as
`
`were many smaller American breweries. Founders John, Gus, and Albert had all passed away,
`
`and Becker Brewing was rapidly losing market share to the large national breweries. Utah’s
`
`longest operating brewery closed its doors in 1965. The rights to produce and sell BECKER beer
`
`were sold to Tivoli Brewing Company in Denver, which continued to produce the beer until it,
`
`too, went out of business in 1969. Becker Brewing continued to wholesale Anheuser-Busch
`
`beers and Schwepps soda for several more years until those distribution rights were sold in the
`
`1970s. The Pioneer Room, an upscale tasting room at the brewery, was also kept open for a
`
`number of years after Becker Brewing closed, and was used by the Becker Family for
`
`entertaining family, friends, and VIPs.
`
`21.
`
`The Becker Family sold the old brewery buildings in the early 1970s. In 1973, a
`
`pub was opened in the old facility, operating under the name “The Brewery” until 1983. Various
`
`plans were considered for converting the brewery facility into other operations, including
`
`potentially a shopping mall, but ultimately all plans fell through. The Becker Brewing buildings
`
`were demolished in 1984.
`
`22.
`
`Nevertheless, the Becker name and the BECKER brand continue to live on in the
`
`hearts and memories of Utahans. Utah State University holds an impressive collection of Becker
`
`Family photos, ephemera, and memorabilia, some of which is reproduced in this Complaint.
`
`Utah State hosts a digital exhibit of some of this collection titled Utah Brews: The Untapped
`
`Story of Ogden’s Becker Brewing and Malting Company, viewable at
`
`
`
`10
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.12 Page 11 of 54
`
`http://exhibits.usu.edu/exhibits/show/beckerbrewing. It also hosted a physical exhibit at the
`
`University in 2017, viewable at http://exhibits.usu.edu/exhibits/show/beckerbrewing/physical-
`
`exhibit. Both exhibits were made possible by contributions from Plaintiff and the Marie Eccles
`
`Caine Foundation. Plaintiff spoke about the Becker Family and Becker Brewing’s legacy at the
`
`physical exhibit’s opening in 2017.
`
`Physical exhibit at Utah State University
`
`
`
`
`
`
`11
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.13 Page 12 of 54
`
`
`
`(L) Bottles of BECKER’S American Pilsner on display at Utah State University
`(R) Panel on “The BECKER Brand” on display at Utah State University
`
`
`
`23.
`
`The Becker name is far from stale, especially in Utah. As the panel pictured above
`
`right from Utah State’s exhibit, titled “THE BECKER BRAND,” explains,
`
`Through the brewery’s advertising campaigns and the
`family’s frequent appearance in local paper, “Becker” became a
`household name in Utah. Ogden natives still remember singing
`along to the Becker jingle on the radio, and hearing news of Gus
`Becker’s latest shooting spectacle. Today, a group of dedicated
`collectors snatches up anything with the Becker name, from old
`signs, labels, and ads to bottles, openers, and other collectable
`antiques.
`
`
`
`12
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.14 Page 13 of 54
`
`The continued desirability of BECKER-branded products is readily reflected in a search on eBay
`
`for “becker beer,” which, as of the filing of this Complaint, turns up over 100 Becker Brewing
`
`BECKER-branded items.
`
`24.
`
`The Becker name continues to feature prominently in Utah in other ways as well.
`
`In the 1930s, Gus Becker put up the capital to install a ski jump hill named Becker Hill in Utah.
`
`He helped bring Norwegian skiing pioneers and brothers Alf and Sverre Engen to Utah to
`
`promote skiing in the state at the new jump. Gus also helped develop “Snow Basin” (now known
`
`as Snowbasin Ski Resort) just east of Ogden, which also had a Becker Hill (now known as
`
`Becker Face), giving a dedication speech when it opened in 1941. Snowbasin’s Becker Lift is
`
`still in operation today. Snowbasin featured prominently on the world stage in 2002 when it
`
`hosted the men’s and women’s Super G, Downhill and Combined alpine races in the Olympic
`
`Winter Games.
`
`
`
`
`
`13
`
`
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.15 Page 14 of 54
`
`Plaintiff (L) with her daughter, Erin Ruzek, and grandson at Becker Lift, Snowbasin
`
`25.
`
`The continued value of the Becker name—both commercially and intrinsically—
`
`has at times caused problems. In the late 1990s, an individual attempted to bring back the
`
`BECKER’S BEER brand without authorization from Plaintiff or anyone else in the Becker
`
`Family. Plaintiff discovered this unauthorized use of BECKER’S in 1998 when she attended a
`
`beer festival in Salt Lake City where the beer was advertised with BECKER’S-branded t-shirts.
`
`The BECKER’S beer and merchandise were not available for long: the Becker Family requested
`
`that the individual discontinue using their name, and he did so.
`
`26.
`
`Unfortunately, Defendants have not been so receptive to Plaintiff’s requests to
`
`cease such attempts to capitalize on the Becker name without authorization.
`
`B.
`
`Defendants’ Unauthorized Misappropriation of the Becker Name and Branding
`
`27.
`
`Upon information and belief, ORB is engaged in the business of making and
`
`selling beer and offering restaurant and bar services.
`
`28.
`
`Upon information and belief, Lotus Craft oversees ORB’s operations and purports
`
`to own certain intellectual properties used by ORB for its goods and services.
`
`29.
`
`Some of the intellectual properties Lotus Craft purports to own, at least according
`
`to public records of the United States Patent & Trademark Office (“USPTO”), are the following
`
`marks (the “Misappropriated BECKER Marks”):
`
`Mark
`BECKER’S BEST
`U.S. Appl. Ser. No. 88685261
`Filed: November 8, 2019
`BECKER’S PREMIUM LAGER COMPANY
`U.S. Appl. Ser. No. 90194761
`Filed: September 20, 2020
`BECKER’S PREMIUM LAGER CO.
`
`Goods/Services
`IC 032. US 045 046 048. G & S: Beer;
`Craft beers
`
`IC 032. US 045 046 048. G & S: Beer;
`Craft beers
`
`IC 032. US 045 046 048. G & S: Beer;
`
`
`
`14
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.16 Page 15 of 54
`
`U.S. Appl. Ser. No. 90194762
`Filed: September 20, 2020
`OUT WEST IT’S BECKERS & design
`
`Craft beers
`
`IC 032. US 045 046 048. G & S: Beer;
`Craft beers
`
`
`U.S. Appl. Ser. No. 90194755
`Filed: September 20, 2020
`BECKER’S MELLOW
`U.S. Appl. Ser. No. 90197790
`Filed: September 21, 2020
`
`IC 032. US 045 046 048. G & S: Beer;
`Craft beers
`
`30.
`
`ORB has used, is using, or is planning to use the Misappropriated BECKER
`
`Marks in commerce in connection with the sale, offering for sale, distribution, and/or advertising
`
`of beer and restaurant and bar services.
`
`31.
`
`ORB has used at least three of the Misappropriated BECKER Marks, BECKER’S
`
`BEST, BECKER’S PREMIUM LAGER CO., and OUT WEST IT’S BECKERS & design,
`
`directly on cans of its beer, which are advertised on the social media platforms Instagram and
`
`Facebook and, upon information and belief, are sold at brick-and-mortar locations in Utah.
`
`32.
`
`Those cans bear a striking resemblance to cans of BECKER’S BEST
`
`manufactured by Becker Brewing in the 1940s:
`
`
`
`15
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.17 Page 16 of 54
`
`BECKER’S BEST post from Instagram
`account @ogdenriverbrewingco, 2022
`
`BECKER’S BEST on the canning line, c. 1940
`
`
`
`
`
`33.
`
`The trade dress of ORB’s BECKER’S BEST cans bears a striking resemblance to
`
`past trade dress of Becker Brewing:
`
`Image of can of BECKER’S UINTA CLUB Mellow Beer
`
`
`
`
`
`16
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.18 Page 17 of 54
`
`Label from ORB’s BECKER’S BEST
`
`
`
`34.
`
`As shown above, the label for ORB’S BECKER’S BEST attempts to draw a
`
`connection between the ORB product and the Becker Brewery history and even the Becker
`
`Family itself, stating under the OUT WEST IT’S BECKERS logo, “Founded in 1892 along the
`
`banks of Utah’s Ogden River and stood for 75 years as one of the longest operating breweries in
`
`the West. Proudly brought back by our family of brewers.”
`
`35.
`
`ORB was not founded in 1892 along the banks of Utah’s Ogden River, but Becker
`
`Brewing was.
`
`36.
`
`ORB did not stand for 75 years as one of the longest operating breweries in the
`
`West, but Becker Brewing did.
`
`37.
`
`ORB has also adopted other Becker Brewing historical trade dress, such as the
`
`Becker Brewing goose, featured prominently in ORB’s logo and used on everything from ORB’s
`
`
`
`17
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.19 Page 18 of 54
`
`labels to its website to its brick-and-mortar “beer store.” ORB even goes so far as to include the
`
`same “shield” outline as was used historically with the Becker Brewing goose.
`
`Side-by-side comparison of ORB goose and Becker Brewing goose
`
`
`
`
`
`
`
`Image of ORB “Beer Store” featuring
`the ORB goose
`
`
`
`
`
`18
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.20 Page 19 of 54
`
`Uses of ORB goose on ORB website
`
`38.
`
`Upon information and belief, Defendants intentionally adopted the Becker
`
`Brewing goose to draw a connection to Becker Brewing.
`
`39.
`
`ORB’s original OGDEN RIVER BREWING logo did not feature a goose and
`
`bore no resemblance to any historical Becker Brewing trade dress.
`
`Original ORB logo on a t-shirt, from an ORB Instagram post dated October 20, 2017
`
`40.
`
`On March 2, 2020, ORB made a Facebook post featuring its current OGDEN
`
`
`
`RIVER BREWING label, which includes a goose.
`
`41.
`
`A Facebook user commented on the post, “Why did you switch to a duck?”
`
`42.
`
`ORB replied to this comment, “It’s a nod to Becker’s Brewing & Malting Co., an
`
`Ogden original as well!”
`
`
`
`19
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.21 Page 20 of 54
`
`
`
`
`
`Screen capture and zoom-in of ORB Facebook post, dated March 2, 2020
`
`43.
`
`ORB has also used at least one Misappropriated BECKER Mark, BECKER’S
`
`BEST, in connection with its bar and restaurant services.
`
`44.
`
`Upon information and belief, ORB has offered “Becker’s Best” fish and chips at
`
`its restaurant since at least July 2021.
`
`
`
`20
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.22 Page 21 of 54
`
`45.
`
`According to the online menu for ORB’s restaurant, available at
`
`https://ogdenriverbrewing.com/menu/, ORB is still offering “Becker’s Best” fish and chips in its
`
`restaurant, as well as BECKER’S BEST beer on tap.
`
`46.
`
`ORB’s use of the Misappropriated BECKER Marks, and Lotus Craft’s
`
`applications to register and claims of ownership of the Misappropriated BECKER Marks, have at
`
`all times been without the authorization of Plaintiff or any other Becker Family member.
`
`47.
`
`Defendants knowingly, willfully, and purposefully misappropriated the Becker
`
`name in adopting the Misappropriated BECKER Marks.
`
`48.
`
`In adopting the Misappropriated BECKER Marks, Defendants intended to use the
`
`Becker name and other “nods” to Becker Brewing, like the Becker Brewing goose and the
`
`Becker Brewing historical trade dress, to cause consumers to believe Defendants are affiliated
`
`with, connected to, or associated with, the Becker Family generally, and Plaintiff in particular.
`
`49.
`
`Defendants’ efforts to draw a connection between Defendants and the Becker
`
`Family generally, and Plaintiff in particular, are numerous.
`
`50.
`
`For instance, in an October 30, 2017 post on the social media platform Facebook,
`
`ORB’s head brewmaster, Pat Winslow, wrote:
`
`I am excited to announce the location of Ogden River Brewing at
`1921 Lincoln Ave! This is the exact location of Ogden’s Becker
`Brewing and Malting Company, which operated on the bank of the
`Ogden River for 75 years. Becker Brewing opened in 1890 and
`even survived prohibition before macrobreweries moved in and
`forced Becker to close in 1964. ORB will bring back the spirit of
`Becker Brewing with a commitment to superior and locally
`sourced ingredients, craftsmanship, and community. My vision is
`to create an environment where people can come and relax with
`friends,, [sic] (even if their friend is a pug,) and enjoy great craft
`beer or other beverages at a neighborhood tap room. I plan to
`honor the Becker family with with [sic] beers and hand crafted
`
`
`
`21
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.23 Page 22 of 54
`
`represent Becker’s
`founders and
`the
`drinks named after
`contribution to the craft and community in the taproom’s décor.
`
`The post went on to invite readers to like the ORB Facebook page and support its Kickstarter,
`
`available at https://www.kickstarter.com/projects/1022312347/ogden-river-brewing-
`
`co/description.
`
`51.
`
`The Kickstarter campaign referenced in the above Facebook post was created by
`
`Pat Winslow in 2017 for the purposes of seeking backers to help launch the ORB brewery.
`
`52.
`
`On the Kickstarter page, Winslow described the planned ORB taproom,
`
`proclaiming its décor “will include photographs and memorabilia touting the rich history of
`
`Becker Brewing and Malting Co. founded in 1890 on the Ogden River just a block east of our
`
`chosen location.”
`
`53.
`
`In an “Update” on the Kickstarter page dated November 2, 2017, available at
`
`https://www.kickstarter.com/projects/1022312347/ogden-river-brewing-co/posts/2033151, a
`
`video of Winslow standing in front of a historical landmark sign for where Becker Brewing once
`
`stood is shown. Winslow states in the video:
`
`Well today I’m standing right here on the property of the original
`Becker Brewing Company that started here in 1890 in Ogden,
`Utah, on the Ogden River. And in 2018, I’m going to put my
`brewery, Ogden River Brewery, on the same location as the
`original Becker Brewing Company was.
`
`
`
`
`
`22
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.24 Page 23 of 54
`
`Screen capture from video on Kickstarter
`
`
`
`54.
`
`The ORB taproom is located at 358 Park Boulevard in Ogden, three blocks to the
`
`east of where Becker Brewing once stood, not on the property pictured or referred to in this
`
`video.
`
`55.
`
`On November 2, 2017 and November 10, 2017, ORB made posts on Instagram
`
`reproducing historic Becker Brewing advertising and encouraging people to contribute to the
`
`ORB Kickstarter, stating, “We’re bringing local beer back to Ogden!” and “Channeling the spirit
`
`of Becker Brewing for this.”
`
`
`
`23
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.25 Page 24 of 54
`
`ORB November 2, 2017 Instagram post
`
`
`
`
`
`
`
`24
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.26 Page 25 of 54
`
`ORB November 10, 2017 Instagram post
`
`56.
`
`Defendants’ attempt to capitalize on the Becker name even extends to Defendant
`
`Lotus Craft’s applications to register the Misappropriated BECKER Marks.
`
`57.
`
`In office action responses filed in the trademark applications for the
`
`Misappropriated BECKER Marks, Lotus Craft attempted to argue past refusals to register each
`
`of the Misappropriated BECKER Marks because of an earlier-registered third-party mark for
`
`BECKER VINEYARDS for wine.
`
`58.
`
`In doing so, Lotus Craft claimed the longstanding fame and reputation in Utah of
`
`BECKER’S—built by Becker Brewing and the Becker Family, not Lotus Craft—as its own.
`
`59.
`
`For example, in its response to the office action issued for its application to
`
`register BECKER PREMIUM LAGER COMPANY, Lotus Craft stated:
`
`[Lotus Craft’s] mark is a revival of a famous legacy brand
`in Utah. Founded in 1890, and significantly expanded in the early
`1900s, the Becker Brewing and Malting Company was a
`preeminent local brewery in the Ogden, Utah area for decades. It
`was the only local brewery to survive prohibition, and it continued
`operations until it was forced to cease operations in 1964 by
`competition from big, out-of-state breweries. Over its nearly 75
`years of operation (it was the longest continuously operating
`brewery in the state), the Becker Brewing and Malting Company
`served as a key part of the history of beer in Utah and built a strong
`connection with the local community. See Exhibit A. While marks
`associated with Becker Brewing were unused for several decades,
`its connection to the Utah beer community remains. See Exhibit B;
`Exhibit C. Vintage Becker Brewing brands cans, signage, and
`memorabilia are readily advertised for sale online. See Exhibit D.
`
`Becker Brewing, while not a national brand, has great
`significance to the Utah beer consuming market, giving it at least a
`moderate level of fame. Although [Lotus Craft] is not the owner of
`the original brand, its’ [sic] mark is a continuation of this brand,
`and the fame of the original brand persists. See Exhibit E. This
`DuPont factors weighs heavily in favor of [Lotus Craft], and, as
`
`
`
`25
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.27 Page 26 of 54
`
`likelihood of confusion analysis,
`in
`the “dominant” factor
`outweighs the similarity of the marks and the similarity of the
`goods factors relied on by the Examining Attorney.
`
`Lotus Craft’s response to the likelihood of confusion refusals in office actions issued for the
`
`other Misappropriated BECKER Marks was largely the same as the above.
`
`60.
`
`In issuing a final rejection of Lotus Craft’s application to register BECKER’S
`
`BEST, the USPTO rejected this argument, stating, “[Lotus Craft] has not demonstrated that it’s
`
`[sic] mark is famous, rather that a prior mark owned by a different entity was famous.”
`
`61.
`
`In issuing a rejection of Lotus Craft’s applications to register BECKER’S
`
`PREMIUM LAGER COMPANY and BECKER’S PREMIUM LAGER CO., the USPTO again
`
`rejected this argument, stating, “[Lotus Craft] has co-opted a brand it alleges was abandoned to
`
`the public domain and seeks to trade on the remaining, if any, good will and nostalgia that was
`
`potentially generated by the unrelated third-party owner (notably not [Lotus Craft]) of the
`
`tradename ‘BECKER’S,’” which the USPTO called an “unsupported piggyback theory.”
`
`62.
`
`The USPTO allowed Lotus Craft’s applications to register OUT WEST IT’S
`
`BECKER’S and BECKER’S MELLOW following this response claiming for itself the fame in
`
`BECKER created by Becker Brewing and the Becker Family. Plaintiff has filed extensions of
`
`time to oppose these applications.
`
`63.
`
`In office action responses filed in the trademark applications for three of the
`
`Misappropriated BECKER Marks, Lotus Craft also attempted to argue past refusals to register
`
`BECKER’S BEST, BECKER’S PREMIUM LAGER COMPANY, and BECKER’S PREMIUM
`
`LAGER CO. based on the marks primarily being merely the Becker surname.
`
`
`
`26
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.28 Page 27 of 54
`
`64.
`
`In doing so, Lotus Craft again pointed to Becker Brewing’s historical use and the
`
`longstanding fame and reputation Becker Brewing and the Becker Family built, essentially
`
`claiming those efforts inured to Lotus Craft’s benefit.
`
`65.
`
`For example, in its response to the office action issued for its application to
`
`register BECKER PREMIUM LAGER COMPANY, Lotus Craft stated:
`
`In response to the Examining Attorney’s rejection of [Lotus
`Craft’s] mark on the grounds that it is primarily merely a surname,
`[Lotus Craft] submits evidence that [the mark] has become
`distinctive of its goods, namely beer brewed and sold in Utah.
`
`. . . .
`
`. . . [Lotus Craft’s] revival has adapted elements of Becker
`Brewing’s historical trade dress to maintain the Becker Brewing
`legacy and awareness in the public’s mind. See Exhibit E. As
`described above, the Becker Brewing and Malting Company
`opened in 1890 and continued to sell beer under that name until it
`closed its doors in 1964. See Exhibit A. Throughout its existence,
`Becker Brewing heavily advertised its products and received
`newspaper coverage. See generally id. Following the closure of
`Becker Brewing, its brand remained synonymous with local Utah
`beer. See Exhibit B; Exhibit F. Upon its revival by [Lotus Craft]
`last fall, its first Becker’s product, Becker’s Best, has already been
`reviewed by a local newspaper and has, to date, 134 online reviews
`by local consumers. See Exhibit C; Exhibit G.
`
`After more than 50 years of use associated with local beer
`production, [the mark] has transcended its connection to the
`Becker surname. The Becker Brewing marks fell into the public
`domain due to abandonment, but said abandonment does not
`eliminate their distinctiveness from the public consciousness.
`[Lotus Craft’s] revival has reaffirmed that distinctiveness. Were it
`not for that lingering connection in the public’s mind, other famous
`abandoned marks like “Amos ‘n’ Andy” and “Hydrox” would
`never have been revived.
`
`Lotus Craft’s responses to the office actions issued for BECKER’S PREMIUM LAGER CO. and
`
`BECKER’S BEST were largely the same as the above.
`
`
`
`27
`
`

`

`Case 2:22-cv-00778-TC Document 2 Filed 12/16/22 PageID.29 Page 28 of 54
`
`66.
`
`In issuing a final rejection of Lotus Craft’s application to register BECKER’S
`
`BEST, the USPTO rejected this argument, stating, “[Lotus Craft] has attempted to asserted [sic]
`
`acquired distinctiveness by piggyback on the fame of Becker Brewing’s mark, and has not
`
`shown that its own mark has become distinctive.”
`
`67.
`
`In issuing a rejection of the BECKER’S BEST PREMIUM LAGER COMPANY
`
`and BECKER’S BEST PREMIUM LAGER CO. applications, the USPTO again rejected this
`
`argument, and specifically rejected Lotus Craft’s reliance on the “Amos ‘n’ Andy” and “Hydrox”
`
`examples as “grossly mischaracterized,” faulting Lotus Craft for “not elaborat[ing] on the
`
`paradox of seeking to claim exclusive rights over something it has alleged to be part of the public
`
`domain.”
`
`68.
`