Veteran of the Trolley Wars
Photo Credit: Alaska Business
Cyrus Aldeman could hate me: twenty-five years ago, his family sought my help during a dispute with a business rival, and I sided against them. He has every right to be angry.
But he isn’t. “I’m just a happy-go-lucky person,” Aldeman says. “Everything leads up to what it needs to be.”
Alderman v. Iditarod Properties was a lawsuit (filed under an alternate spelling of the family name) involving the Fourth Avenue Theatre and the use of its name. Iditarod Properties, owned by supermarket heir Robert Gottstein, renovated the historic building into a meeting space in the ‘90s.
While Aldeman was barely in kindergarten, his parents ran trolley tours from the theater. Then their business arrangement with Gottstein dissolved. The “Trolley Wars,” as local media called the fracas, culminated with a trial in 1999.
I was on the jury. We found in Gottstein’s favor.
Aldeman doesn’t hold a grudge. “A lawsuit is just a disagreement between two people, where a third party has to intervene,” he says.
Indeed, Aldeman still sees Gottstein around Anchorage. “We catch up like we’re old friends,” he says. “My dad and Gottstein talk, like, once a year. ‘Bout nothing. About cheese in the grocery store.”
Gottstein sold the Fourth Avenue Theatre in 2009, and in 2022 the building was demolished pending a major redevelopment. Meanwhile, Aldeman carries on the family business as the owner and “chief experience officer” of Anchorage Trolley Tours in a legal landscape paved by his parents.
“The branding and the marketing [give the trade name owner] the ability to say, ‘This is our brand, and you can’t misidentify as my brand… It assists in being able to at least have a conversation of, ‘Hey, this is my brand.’”
—Paula Bradison, Founder and Owner, PeopleAK
First Impression
When his parents appealed the trial verdict in 2001, the Alaska Supreme Court noted, “Trade name infringement is an issue of first impression for this court.”
Novelty attracted Walter Tutiq Featherly to the case, representing Gottstein. Featherly recalls, “One of the parts of the case that made it so interesting, as a lawyer, is to be litigating a matter where the law was not settled in Alaska. It added a dimension.”
At the heart of the case was the right to “Fourth Avenue Theater” as part of a trade name. Aldeman’s family claimed it for the trolley tour, while Gottstein asserted ownership. The law secures naming rights to preserve fair competition.
Businesses register trade names with the Division of Corporations, Business, and Professional Licensing of the Alaska Department of Commerce, Community, and Economic Development. For example, every two years Aldeman renews the registration of “Anchorage Trolley Tours,” the “doing business as” (DBA) name of the transport carrier owned by parent company Alaska Guestours (which is likewise registered).
Paperwork protects the business. “The branding and the marketing [give the trade name owner] the ability to say, ‘This is our brand, and you can’t misidentify as my brand,’” says Paula Bradison, founder and owner of PeopleAK. “It assists in being able to at least have a conversation of, ‘Hey, this is my brand.’”
Bradison cites a recent incident when a company in Seattle redirected traffic from PeopleAK’s subsidiary, Alaska Executive Search (AES), via the Bing search engine. The registered name helped AES sort out the masquerade.
The trolley case, according to Featherly, determined that Alaska policy and terms are to be used in Alaska, not borrowed from other jurisdictions. Alderman established that registration was not sufficient without prior use. “The court clarified that, even though the Division of Corporations would register a name… if there was a prior use, then that registration did not trump the prior use, did not somehow result in getting exclusive rights to use the name,” Featherly explains.
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September 2024
Prior Use
Anchorage Trolley Tours appreciates the value of prior use. Its trademarked logo is a cartoon character, Clifford the Big Red Trolley. A rip-off of the Big Red Dog in books published by Scholastic since 1963? Take it up with Aldeman’s great-grandfather Clifford, who had the name first.
Aldeman has learned a lot about trade name law since he recently retained an attorney. He says, “My dad’s like, ‘Put TM after everything; put R after everything.’ And my lawyer was like, ‘If it’s not trademarked, don’t do that. You’re not supposed to.’”
Registering “Fourth Avenue Theater Trolley Tour” before using the name was, according to the Alderman ruling, one of his father’s mistakes. But reasonable people could disagree whether Iditarod Properties had exclusive use.
“It required a fact-specific inquiry, including the presentation of evidence, as to whether or not the use actually resulted in confusion, or whether it might be reasonably expected to result in injury,” Featherly notes. Witnesses told jurors that customers with trolley reservations would show up at the theater—and when Gottstein started his own trolley tour, his customers would show up next door, where the Aldemans had set up shop.
Alter Ego Similarity
PeopleAK has also dealt with cases of mistaken identity. “For instance, I had six or seven people who applied for unemployment, and the paperwork came to me because they understood they were working for Alaska Executive Search, yet they were working for a different company entirely. That’s where it got a little bit tricky,” says Bradison. “Unraveling that with the state took time and money, to be honest.”
Bradison adds that the confusion did not, in that instance, involve the personnel branch of Arctic Slope Regional Corporation. That staffing company recently registered a new DBA as ASRC Talent Solutions while maintaining its previous identity as a business line of ASRC Energy Services. Formally named ASRC Energy Services E&P Technology, Inc., the company is best known as AES Talent Solutions.
No relation to AES, Alaska Executive Search. Bradison recalls, “We did have two events where we were both contributors, and they inadvertently used the wrong AES. That just has to do with marketing departments picking up the wrong logo.”
ASRC Energy Services recently adopted a new logo that resembles Iñupiaq whalebone arches, and the branding also drops “Services” to unify its companies under “ASRC Energy.” On paper, though, “AES” is still part of the official name. An ASRC Energy spokesperson says, “We have not received any reports of confusion or concern with our long history of using the AES short form name.”
For her part, Bradison feels that, although AES and AES Talent Solutions both deal with staffing, they get along well. “I’m certainly no competition for ASRC, as a small business owner. We’re in a little bit of a different space,” Bradison says.
Organizations in other fields lay claim to “AES” too: Arctic Encounter Symposium, Alaska Enterprise Solutions, Alaska Earth Sciences, and more. Bradison says she became aware of them when her company acquired Alaska Executive Search in 2016 from its co-founder, the late Bob Bulmer.
“The court clarified that, even though the Division of Corporations would register a name… if there was a prior use, then that registration did not trump the prior use, did not somehow result in getting exclusive rights to use the name.”
—Walter Tutiq Featherly, Attorney
Although Bulmer had a trademark for AES, “it had expired at some point or was no longer recognized or enforced,” Bradison says. “We applied for a trademark with the state, and because the logo had slightly changed (font and some other things), we couldn’t necessarily trademark ‘AES’ retroactively.”
Alaska Executive Search remains a separately licensed company under the PeopleAK umbrella. The newer brand, Bradison explains, launched in 2021 to combine her companies under one website. It also helped emphasize the evolution of Alaska Executive Search into the areas of contingent and flex staffing. “It was difficult for people to wrap their mind around that we didn’t just place executives,” Bradison says.
Secondary Meaning
As a trade name, “PeopleAK” combines two generic terms: the word “people” and the postal abbreviation for Alaska. Any organization in Alaska involving people might’ve registered the name, but Bradison’s company thought of it first.
The crux of the Alderman case was whether “Fourth Avenue Theatre” was generic enough for anyone to use. “There are a lot of Fourth Avenues—this, that, and the other thing—and there are a lot of theaters,” Featherly explains. “Has the combined ‘Fourth Avenue Theater’ acquired secondary meaning associated with something distinct from Fourth Avenue, the street name, and distinct from theaters generically?”
Cyrus Aldeman (above) was just a kid when his parents faced Walter Featherly (right) in court. Although they lost the “Trolley Wars” case, the family business has grown stronger than ever with Aldeman as CEO, under the Anchorage Trolley Tours brand.
Photo Credit: Alaska Business
By comparison, Gottstein needed nobody’s permission to name his company. Featherly says, “Iditarod Properties, the company owned by Mr. Robert Gottstein, had nothing whatsoever to do with any aspects of the Iditarod race or Iditarod, Alaska, the place. As a consequence, ‘Iditarod Properties’ acquired secondary meaning.”
Litigating this question, Featherly and his co-counsel contended against a legendary lawyer, Edgar Paul Boyko. Representing the Aldemans was the final case for the former state attorney general known as the Snow Tiger before he died on January 1, 2002. Featherly had previously handled a case on the same side as Boyko, when they represented codefendants. “I found Edgar Paul delightful to be our adversary,” Featherly remembers.
Unfortunately for Boyko and the Aldemans, Gottstein’s lawyers persuaded the jury that Iditarod Properties had invested in reviving the landmark’s identity and therefore owned the right to the name. Thus, any confusion was the Aldemans’ fault. Gottstein might have played dirty by starting his own trolley tour after the Aldemans developed the market, but not in a legally actionable way.
In 2001, the Alaska Supreme Court upheld our verdict. According to the ruling, “The evidence shows that the Aldermans registered the name ‘Fourth Avenue Theater Trolley Tours’ soon after the falling out with Iditarod and selected a trolley parking spot partially in front of the theater. Because this evidence raises the inference that the Aldermans intentionally infringed Iditarod’s trade name, it also supports the jury finding.”
The opinion says the trial court correctly interpreted Alaska statutes as requiring prior use of a name for valid registration. The single mistake in the Aldemans’ favor was a matter that I, alone among the majority of jurors, also dissented on: a claim of back rent that Featherly tacked on after evidence had been presented. This award was overturned in the 2001 appeal but upheld in a 2004 appeal.
The law regarding trade names still stands, and conflicts are now rarer. “I think that was the last trade name case I ever handled and have not, in any direct way (not in any litigation), handled any trademark case,” says Featherly. Now general counsel for Calista Corporation, Featherly says intellectual property matters for the legal department mainly relate to copyrighted books published by a nonprofit affiliate.
Mom and Pop Prevail
In the wake of the lawsuit, Fourth Avenue Theater Trolley Tours reverted to its previous name, Anchorage Trolley Tours. While Aldemans’ parents retired on income from rentals built on the family’s century-old homestead, he purchased the company outright about two years ago. He had been handling operations since about 2005, before he graduated from high school.
The company weathered the tourism downturn during the COVID-19 pandemic thanks to eighteen months of liquidity, which Aldeman attributes to financial advice from First National Bank Alaska. Tours now operate year-round, with three different routes in summer. The newest takes riders to the William Jack Hernandez Sport Fish Hatchery on Ship Creek, the largest sportfish hatchery in North America.
A little way downstream, Aldeman is preparing for a big move. “We just signed a lease with the Alaska Railroad, and we’re going to be building our new headquarters on the shore of Ship Creek,” he says, allowing the company to consolidate offices currently at The Boardroom and park the trolley fleet that’s now stored at an off-site lot. “With this new headquarters, we’re putting everything in one, and we’re very, very excited about that, becoming a more unified unit every day.”
Ironically, the mom-and-pop company thrived while Gottstein’s trolley venture folded. However, a former Iditarod Properties employee, Donna McCarrey, came to work for Alaska Guestours and became a valued part of the family.
To this day, trolleys roll down Fourth Avenue, where the historic theater is just a hole in the ground. Like many fans of the building, Aldeman agrees its demolition was a shame.
“Gottstein put the Fourth Avenue Theatre in the historical books as a registered building. If he hadn’t done that, the building would’ve been torn down years and years and years ago. That lawsuit helped save the building for more years than it should’ve,” Aldeman says.
Fatefully, the Trolley Wars might’ve been what brought Gottstein’s theater crumbling down. Aldeman conjectures, “If he didn’t get distracted by the trollies, he could’ve really invested and built something beautiful.”
