Young and Hungry

Brewer of Rogue Ales Sues Rogue 24 for Trademark Infringement

Rogue Ales producer Oregon Brewing Company filed a lawsuit against Rogue 24 and chef/owner R.J. Cooper last week for trademark infringement.

Oregon Brewing Company, which operates 11 restaurants and brewpubs with the mark "Rogue" on the West Coast, owns the trademark "Rogue" for restaurants, pubs, and alcoholic beverages and has been using the name since 1989, according to the complaint (see below). The company's beers are available throughout the D.C. area, and according to the suit, have also been sold at Rogue 24, which opened in July 2011.

The lawsuit, filed Thursday in U.S. District Court for the District of Columbia, says Rogue 24 refers to itself simply as "Rogue" on its menu and in its logo and that the restaurant also offers microbrews. Oregon Brewing Company argues this is likely to cause confusion with its brand.

Cooper declined to comment on the lawsuit, which he says he still hasn't officially been served with. UPDATE: Shortly after this post was published, Cooper emailed Y&H: "Your story is completely wrong. We never have sold any rogue brewery products nor spirits in the restaurant. Get your facts straight before you write." (Y&H had sent Cooper a copy of the complaint on Friday, but he hadn't contradicted the brewery's assertion that Rogue 24, the restaurant, sold Rogue, the beer, until now.) Y&H has left a message with Oregon Brewing Company's lawyer on that point and will update again as needed.

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, and for unspecified additional "injunctive relief."

So, is there a case? D.C. trademark attorney Alex Butterman of Staas & Halsey, who's unaffiliated with the lawsuit, says the word "Rogue" in reference to beer and restaurants is distinctive and unique enough that it would be protectable as a trademark. Butterman adds that the Oregon Brewing Company will still have to show that there is likelihood of confusion between the brands, which is easier to do if their products or services are in the same market.

"It's not only how similar the marks are, but how similar are the channels of trade," Butterman says. "How likely are the same consumers to see the two marks and believe that one is associated with the other?"

Photo by Jessica Sidman

  • erik

    I think it's likely rogue24's mark would be watered down if people thought it associated with rogue brewery. 24 course dinner with wine pairings wouldn't cause confusion with someone looking to get irish potato nachos and a beer.

  • RT

    Wow this is a stupid lawsuit... Rogue beers are "has been" microbrews anyways. What a waste of everyone's time and money.

  • Brian

    RJ helped us out early on, even in the middle of opening his restaurant and was a nice guy. I hope the judge awards him extra for the waste of his time and to discourage frivolous lawsuits like this everywhere. Are they going to Sue 2008 Sarah Palin for going Rogue too?

    Get a clue Rogue (beer) - nobody in DC has walked into Mr. Cooper's restaurant and thought there was any affiliation with your brand; if they did - it would have hurt, not helped, his head count. Lay off the hops and the over use of your own product and you might be able to think straight long enough to realize your lawsuit is beyond idiocy.

  • Ben

    "Your story is completely wrong. We never have sold any rogue brewery products nor spirits in the restaurant. Get your facts straight before you write."

    Cooper sounds like a pretty charming dude.

  • deangold

    Too bad I don't carry their beers so I could stop buying them.

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  • ML

    Cooper responds similarly to bad yelp reviews. He seems like a peach.

  • BP

    There is definitely a case here. I don't know DC or its restaurants, but the first thing I thought of when I saw the name was Rogue beers. Maybe RJ can change the name to Coke24 - I doubt there'll be a problem there, right? How about MicroSoft24? MS isn't even in the food/restaurant business but I'm sure they could successfully sue.

    Put the emotions aside and look at the legality. RJ is wrong and he will lose.

  • David

    What is with the Rogue beers hate? Is their stuff watered down? Dead Guy seems fine...

  • SW

    Whether or not they have a case, RJ Cooper's response makes him sound like such a jackass.

  • SW

    Actually...isn't this the same guy who harassed Chris Shott in the comments section for not liking Rogue 24?

  • steve

    wow. asshole brewing company sues asshole restaurant owner. while i can't afford rogue 24, i respect it's place in the dc food scene. rogue brewing, however, i can afford, and they have just lost my business.

    for those unaware of Rogue's (shitty brewery) poor background with how they treat employees, here you go:

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  • Anon


    I'm going to go out on a limb and say you are not a lawyer. While I think Rogue has a colorable claim, it's far from a slam dunk. For example, they exist in completely different markets---if Rogue24 was Birch&Barley, that might be different---and I'm betting there is almost no overlap of their consumers. Further, while Rogue's mark is undoubtedly strong in Oregon and the West Coast in general, it's weak in DC/Nova. Rogue beers are around, but you have to search for them and the selection is very limited.

    Coke and MicroSoft are not generic words, so your examples are largely inapt. A better example would be someone's first name or better yet a word that describes your service. For example, if I wanted to open Ben's Cafe in Annapolis, Ben's Chili Bowl would have to show more than the use of the same name to prevail.

  • CookInDineOut

    The closest Rogue brewpub is the one at the Portland Airport--2,801 miles from Rogue 24 in Washington, DC. Given that rather great distance, I don't see how anyone could be confused. If I set out to eat at Rogue and ended up at Rogue 24 by mistake, I'd have taken a rather long detour.

  • Anon


    I think the problem with Rogue stems more from how they would like to be viewed vs. what they actually have become. Rogue makes good, solid beers, and they were instrumental in starting the craft beer movement. But while everyone else was running with the torch they lit, they stayed behind and continued with more of the same---at least when it comes to the East Coast. And I think it wrankles some people (rightly or wrongly) that they continue to be treated as a top brewery when the reality is that they have been lapped many times over by many breweries.

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  • Tony

    They had to change the name of the forthcoming restaurant next to Corduroy from Herringbone to Baby Wale after they were threatened by a lawsuit from a West Coast based chain of fabric themed (!) restaurants. Sounds similar and only a block from Rogue 24. What is it with 9th St?

  • DonJuan


    The problem with your analysis is that Rogue brewing has a number of Federal trademark registrations, which cover not only beer, but restaurant services. Having these registrations gives one national, not regional protection. Further, even though Rogue is indeed a word in the English language, genericism is only determined in conjunction with the goods and services provided. When Rogue is used for beer or restaurants, it is not generic; rather, rogue for beer or restaurants is arbitrary, which is afforded a great amount of protection under our trademark system.

  • Anon

    Why do you assume that Rogue is arbitrary? I would think the contrary--it's being used to describe the product being sold. In fact, that's how Rogue Ales uses it.

    And proximity is related to whether there could be actual confusion, not regional vs. national protection.

  • DonJuan

    It is at least suggestive, certainly not descriptive. There are no "rogue" beers or "rogue" restaurants. There is no common descriptive usage for these goods or services for the word rogue, as opposed to "dark" which can describe the actual color of certain beers or "pilsner" which is a generic designation for a particular type of beer. "Rogue" simply does not meet the legal definition for generic or descriptive wording in relation to beer or restaurants.

    Regarding "proximity", if you are looking to the DuPont or Poloraid factors that courts use to determine the likelihood of confusion, then I think you are mistaken. This proximity analysis is how closely related are the goods and/or services - which is to say, for instance, does one who makes alcoholic beverages often provide restaurant services and vice versa - not the geographical location of the parties.

    Yes, those with Federal trademark registrations are entitled to national protection. The only acception to this national protection is the Dawn Donut Rule, which would need to be successfully argued in this instance to avoid liability.

  • Deam


    Sound legal analysis. I question however whether Dawn Donut is truly applicable in today's day and age. With the proliferation of the Internet, even if a senior user doesn't do business in one corner of the country, it is wholly possible that consumers are aware of its mark and product, or can be introduced to it online. Add to this that Rogue Ale does in fact distribute to DC (whereas in Dawn Donut, an injunction was stayed until some time in the future when Dawn could demonstrate actual intent to use in the junior user's enclave), and I think Rogue 24 is out of luck.

  • DonJuan


    I agree completely. I believe the 6th Circuit has rejected Dawn Donut for the reasons you point out and we are probably trending that way elsewhere.

  • dcexpat

    I wonder if this changes RJs plan to open "Mini by Cooper?" Karma is a son of a B.

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  • JFoodgeek

    What is the status of this lawsuit? I haven't bought a Rogue Ale since 4/2013, and for all I know, Rogue Ales dropped the lawsuit.