When Dale Pruce submitted a promotional idea to the Miller Brewing Company five years ago, the Milwaukee brewer's rejection letter ended with the encouraging, "We look forward to hearing from you."

It got its wish.
This February Pruce fired off another letter to the company, this time contending that Miller had stolen his idea and used it in an alcohol-awareness advertisement shown during last year's NBA playoffs.

"Part of the irony is that I'm positive I was drinking a Miller beer at the time I saw the ad on TV," the 44-year-old Arvada resident adds.

When he came up with the concept back in 1988, "it was just another weird idea I thought would fly," says Pruce, who once spent his birthday sleeping on the pavement outside US West in order to procure a 976 line. "The idea was to come up with some slogans that might get it much more accepted," he explains. "`Drinking and driving is a penalty'; `Drugs are a penalty.' Things that I thought were a penalty in life. And I came up with `Know When to Pass,' which seemed to cover all the bases."

He had the phrase silk-screened onto squares of yellow fabric that resembled flags used at football games and auto races, then named his creations "Official Penalty Flag" and "Official Caution Flag."

"The fans could play like a referee," Pruce says. "If a bad call was made, they could wave the flag around. But there was also a social statement to it." For example, he suggests, a flag could be used to warn someone who had had too much to drink that he should pass his car keys to a designated driver.

In summer 1989 Pruce approached a member of the Coors family about the idea when they were staying at the same Las Vegas hotel. The Adolph Coors Company actually tested the concept for about two months before it decided to pass. After that, Pruce says, "I sent it to anybody I thought might have that type of power and money and might have an interest in doing something along those lines."

Among those Pruce contacted: Donald Trump, whose spokesman said the flag wasn't "within the investment parameters of the Trump Organization"; the NFL, which refused to officially sanction the "Official Penalty Flag"; the Los Angeles Police Department, which rejected the idea with a nice thank-you note from then-chief Daryl Gates; former mayors Ed Koch and Federico Pena, who both declined Pruce's offer; and the MADD organization, which wasn't particularly crazy about the flags, either.

Anheuser-Busch didn't mince words in its rejection letter: The idea was a ripoff of its "Know When to Say When" slogan, the brewer charged, essentially ordering Pruce to cease and desist.

"I just said screw it," Pruce remembers, and never responded.
After waving the flag for a year and having nothing more to show for it than rejections from almost twenty corporations, Pruce put the idea on hold and moved to California to try his luck with a publishing venture.

Pruce was still there during the 1993 NBA playoffs when he caught a Miller ad featuring Larry Bird. After offering a thirty-second lecture on the dangers of drinking and driving, the NBA legend turned to the camera and said: "Know when to pass."

"When I first saw this commercial, I went into this panic mode," Pruce remembers, "because I had just recently emptied out my files and I had seen a bunch of this stuff left over from the penalty flag and thrown it away. I literally went nuts and started screaming. Other than changing a couple of words, it's exactly what I proposed to them."

When Pruce moved back to Colorado late last year, he says he contacted every attorney in the Yellow Pages before he found one who might take his case.

"We thought it might be something," says Frank Grassler, a lawyer who specializes in patents and trademarks. "We went out and researched the case law--cases involving advertising laws, submission of ideas of other people--and when we looked at the previous decisions, we found that you have to make it clear you expect compensation." Pruce had not mentioned compensation in his letter to Miller, Grassler notes, and "because of that, he would not have had a good chance of prevailing."

There was another legal obstacle to Pruce's case: He'd never paid the Library of Congress the $20 fee necessary to copyright his promotion. "I think the attorneys did what they could do," Pruce says. "And they told me, `Just because we didn't come up with something doesn't mean there's nothing there.'"

So Pruce took matters into his own hands and wrote Miller to demand compensation.

He received a quick reply from James Koester, general counsel for the company: "Miller maintains a large staff and retains the services of outside agencies who are constantly at work on the development of both old and new ideas for promoting the sale of our products. It is not surprising, therefore, that many of the ideas submitted to us by the general public are similar to, or identical with, those being developed by our general staff." In order to prevent just such misunderstandings, Koester's letter continued, Miller doesn't accept unsolicited ideas pertaining to packaging, advertising or sales promotion.

That's quite a turnaround from the letter Pruce received from Miller five years earlier, in which the trademark licensing department said he was "invited to submit additional ideas in the future for our consideration."

"If someone sends us unsolicited material, sure, we'll look at it," responds Michael Brophy, Miller's corporate communications manager, when the discrepancy is pointed out. "But typically, we rely on our own marketing and research corporations."

Pruce doesn't think there's anything typical about his case. "I suppose we could think up the same things at the same time," he says. "And that's exactly what they say in their letter. That's such a cheap shot. I could throw that line out in a thousand situations just to rip off ideas."

And in the meantime, the flag's down on the play.


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