The Question at the Heart of the Cliff House Name Dispute
Is It Even Possible to Trademark the Name of a Landmark in a Way That Prohibits General Usage of the Name By Others? Short Answer: “No—But….”
When the National Park Service announced last month that it had awarded the next 20-year Cliff House lease to Sutro Lands End Partners, LLC, a press release from representatives of the company noted:
Mr. and Mrs. Hountalas claim to be the exclusive owners of the trademark and are seeking payment in order to allow the building to continue to be called the Cliff House.
Over the course of three articles published in 2021 and this month (here, here, and here), I have tried to show that Dan and Mary Hountalas do not own any trademark that entitles them to press such an absolute claim.
Of the five Cliff House-related trademarks that the Hountalases own through their company PWIIP, LLC, and that are registered with the United States Patent and Trademark Office (USPTO), four include the term “Cliff House” or “The Cliff House.”
One of these four, “Cliff House Classic,” is for “packaged mixes for baked goods” and “bottled non-alcoholic cocktail mixes.”
Two others are for the specific graphic logos, including the term “Cliff House,” that the Hountalases used for their restaurants and gift shop inside the The Cliff House—and for the food and beverage products.
These examples illustrate the fact that trademarks are never blanket trademarks. They always are trademarks for specific uses. Indeed, every trademark is registered and approved for one or more International Classes, i.e., classifications, depending on which goods or services are to be provided under the mark.
The same is true for the last of the Hountalases’ “Cliff House” trademarks — a “service mark” for the term “The Cliff House.” This mark is registered for “restaurant services and retail gift shop services.”
Although these four trademarks employ “Cliff House” terminology, none of the marks pertains to the landmark itself—so…
None of the marks has the power to prohibit any entity from using “Cliff House” as the name of the landmark.
Comes the question: Is there a trademark that an entity could register that would prohibit other entities from calling The Cliff House…The Cliff House?
It appears not. But, there are trademarks that would put greater focus on the building itself than on what happens inside the building (restaurants, bars, gift shops, and the like).
An example of this approach is underway right now with respect to another landmark in San Francisco. Hudson Pacific Properties, the primary leaseholder of the San Francisco Ferry Building, are in the process of trademarking “Ferry Building” and “The Ferry Building” in a number of use classes.
On 30 June 2022, Hudson Pacific filed an application to trademark “Ferry Building” as a service mark in the class of Real Estate Services—specifically, “Real estate leasing; Real estate management; Providing information in the field of real estate.” Here is a current detail of the application record as it appears on the USPTO website:
On 18 August 2022, Hudson Pacific filed an application to trademark “The Ferry Building” as a service mark in the class of Advertising—specifically, “Promoting the goods and services of others by means of operating a mall; Promotional and advertising services for lessees of shopping and restaurant centers.” Here is a current detail of that application record as it appears on the USPTO website:
This more building-specific trademarking of the name of a landmark in the classes of real estate and advertising is how “Empire State Building” and “Chrysler Building” were trademarked by the owners and leaseholders of those landmarks—something that, surprisingly, was done only in the last 15 years or so—and, it would not be surprising to see Sutro Lands End Partners move in the same direction at The Cliff House.
Personally, I would prefer to see Cliff House trademarks like this owned by the National Park Service, as NPS is the owner of the landmark. But, if it emerges that Sutro Lands End Partners is the party that takes this up, then it would seem wise for NPS and Sutro Lands End to have a contractual agreement (a) stipulating that Sutro Lands End maintain any Cliff House trademarks and (b) requiring that—in the event the company ceases to be the operator of The Cliff House—the company transfer any non-logo “Cliff House” marks to NPS or to any future operator at no cost.
This would be in keeping with the ideal and the reality that the name of The Cliff House is a public trust.
What all of this confirms is that trademarks are about trade.
USPTO’s trademarking protocol doesn’t envision trademarking the name of a landmark in the abstract.
Indeed, even in the case of a building owner’s or leaseholder’s trademarking the name of a landmark for real estate and advertising purposes, the name of the landmark is trademarked with a view to the marketable good or service — the trade — that the landmark makes possible.
Like any trademark, a “Cliff House” trademark in the classes of real estate—or advertising—or restaurant and bar services—or gift shop services—gives the trademark owner the exclusive right to use the name to do business In. Those. Spheres.—while remaining silent about Any. Other. Uses. of the name.
Would an advertising trademark for “Cliff House” give Sutro Lands End Partners or, as the case may be, the National Park Service the exclusive right — a right that even Dan and Mary Hountalas may not have had, at least not as spelled out in law—to put up giant lighted “CLIFF HOUSE” letters atop the 1909 building? Perhaps.
But, none of these trademarks can keep Sutro Lands End Partners—or their corporate team members—or any Cliff House romantic on the street from calling The Cliff House what it ever has been: The Cliff House.
For more on this issue, see my previous articles:
“The 5 Hountalas Trademarks for The Cliff House” (Feb 2021)
“Does the Bank Still Have a Claim on the Hountalas Trademarks for The Cliff House?” (Feb 2021)
“Why Did the Hountalas LLC Apply for a New ‘Cliff House’ Trademark in May 2023?” (Oct 2023)
“On Cliff House Name, Mary and Dan Hountalas Continue to Jerk San Francisco Around” (Nov 2023)
