Taken in Vain
Tom Broemmel and his wife, Lani Lee, received a prompt welcome-to-the-neighborhood gesture when they moved from North Carolina and opened the LoDo Inn at 16th and Wazee Streets last October.
The couple got a letter from nearby LoDo's Bar & Grill that read, in short: Stop using the name "LoDo" or we'll sue.
Tom Broemmel thought it was absurd that another neighborhood business would claim ownership on a geological moniker like LoDo, which stands for "lower downtown." But they didn't fret; instead, they hired a lawyer to ward off their new pen pals.
"No one has the exclusive right to use the term 'LoDo,'" Broemmel huffs, "including them."
"Them" is the LoDo Restaurant Group, Inc., owners of three businesses in lower downtown Denver: Croc's Mexican Grill, Mattie's House of Mirrors and, of course, LoDo's Bar & Grill, which opened in 1994. Aside from threatening the bed-and-breakfast, the consortium is suing another business that dared to use the snappy locution, which it trademarked in 1997.
In a lawsuit filed May 20 in U.S. District Court, the LoDo Restaurant Group claims that the LoDo Music Hall, at 1902 Blake Street, is using the name without authorization.
"Scores of consumers have been actually deceived and confused by Defendant's [LoDo Music Hall] use of the LoDo trademark," the suit claims. "Plaintiff [LoDo's Bar & Grill] regularly receives misdirected telephone calls and visits from confused consumers mistakenly believing that Defendant is Plaintiff or that Plaintiff is Defendant."
The lawsuit further alleges that the music hall's use of the term is "diluting" and "weakening the distinctive value of that mark and/or tarnishing the consuming public's favorable association with Plaintiff's LoDo's mark and name."
When LoDo Music Hall operating partner Mike Bertinelli opened the envelope containing the lawsuit, he was shocked. Bertinelli considers himself a close friend of LoDo's Bar & Grill owner Chris Myers, whom he has known for several years. "I attended his wedding last year," Bertinelli says. Initially, Bertinelli refused to take the legal action personally--or seriously--and hoped the lawsuit would "burn itself out." It didn't.
Myers declined to comment about the lawsuit or Bertinelli. He forwarded questions to his attorney, Mark Sommers.
"If the name LoDo's is highlighted," says Sommers, who works for Finnigan and Henderson, a Washington, D.C., firm that specializes in trademark infringment, "it's likely to engender confusion. We don't want people walking around calling something LoDo's when it's not LoDo's."
Sommers said the word "LoDo" does not infringe on his client's name when it's used as a geographical reference.
There are 26 businesses registered at the Colorado Secretary of State's Office with LoDo or LoDo's in their names.
"I think it's pretty hard for someone to claim the fame to the name," says Jim Crowley, who has owned the LoDo Pharmacy since 1996. "LoDo was here even before that business was there. I don't know who first started LoDo, but they didn't."
Denver Post columnist Dick Kreck credits himself with creating the nickname, something he has tried not to let anyone forget.
In a May 1, 1994, column, Kreck gave a blow-by-blow account of how he supposedly coined the term in 1983. As he put it, the name "grew" out of a discussion with his wife, who was then attending college in New York City and was "struck by the fact that what gave many of the areas of Manhattan their identity were contractions of their name."
Once he penned the moniker, Kreck recalled in the column, "I used it again. And again. Finally, it caught on."
History aside, Bertinelli says he picked the name "LoDo Music Hall" when it opened last year because "we were in LoDo and we were a music hall." But the lawsuit gave Bertinelli a list of acceptable name changes he could use to remedy the problem.
Last week Bertinelli mailed a letter of his own, alerting Myers and Sommers that he has agreed to use one of their suggestions and has changed the name. The LoDo Music Hall is now the Music Hall at LoDo. "We're doing this to avoid a federal lawsuit," Bertinelli says. "We're not making a declaration that it's right or wrong or that we're guilty. The name just doesn't have enough value to spend that kind of time and money."
But Sommers says he hasn't received the letter. "We understand they are still answering their phones with the infringing use of our trademark." However, an answering machine at the music hall uses the new name.
In a recent letter to the Broemmels, Sommers surprisingly gave his blessing for them to continue using the name LoDo Inn. Tom Broemmel was relieved the lawyer had backed off.
But then another letter arrived.
The Broemmels, it turned out, had the nerve to open the LoDo Express Cafe next to their inn.
Tom Broemmel says he is not going to change the name, and if he gets sued, he'll sue right back. He's even sent out letters to twelve other businesses with "LoDo" in their name, including the LoDo Pharmacy, the LoDo Learning Center, LoDo Self Storage and the LoDo News, proposing that they band together to fight off the neighborhood bully. But so far he has received little response.
Broemmel says that the term is provincial--"just like SoHo in New York"--and that this entire legal fiasco is ridiculous.
Warns Sommers, "We'll be looking into that matter after this matter is concluded."
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