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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alderman et al. v Iditarod Properties, Inc. et al. (10/12/2001) sp-5486

Alderman et al. v Iditarod Properties, Inc. et al. (10/12/2001) sp-5486

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


CALEB ALDERMAN; BARBARA       )
ALDERMAN; and ALASKA          )
GUESTOURS, INC., dba FOURTH   )
AVENUE THEATER TROLLEY TOURS, )
                              )    Supreme Court No. S-9285
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3AN-98-7297 CI
                              )
IDITAROD PROPERTIES, INC.,    )
dba FOURTH AVENUE THEATRE,    )
and ROBERT GOTTSTEIN,         )    O P I N I O N
                              )
             Appellees.       )    [No. 5486 - October 12, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Brian C. Shortell, Judge.


          Appearances: Robert C. Erwin and Roberta C.
Erwin, Erwin & Erwin, L.L.C., Anchorage, for Appellants.  Herman G.
Walker, Jr., Koval & Featherly, P.C., Anchorage, for Appellees.


          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.   INTRODUCTION
          During the 1998 Anchorage tourist season, both Robert
Gottstein's Iditarod Properties and Caleb and Barbara Alderman's
Alaska Guestours operated separate trolley tours named "Fourth
Avenue Theater Trolley Tours" from the front of the historic Fourth
Avenue Theatre [Fn. 1] owned by Iditarod.  Iditarod sued the
Aldermans for trade name infringement.  A jury found that the
Aldermans had infringed Iditarod's trade name "Fourth Avenue
Theatre" [Fn. 2] and had breached a lease agreement for the use of
the theater's ticket booth.  The Aldermans appeal numerous issues
including the application of trade name law, the jury verdict, the
interpretation of the business name registration statute, the
amendment of the pleadings, and the award of attorney's fees.  We
affirm on all issues except the superior court's decision to allow
amendment of the pleadings after the close of evidence.
II.  FACTS AND PROCEEDINGS
          Caleb and Barbara Alderman are the owners of Alaska
Guestours, Inc.  In 1994 the Aldermans started a trolley tour
business in Anchorage.  In 1996 they adopted the name "Anchorage
Trolley Tours." 
          Robert Gottstein is the sole shareholder of Iditarod
Properties.  In 1991 Iditarod acquired the Fourth Avenue Theatre,
a historic building in downtown Anchorage.  Iditarod spent
approximately three and one half million dollars restoring the
Fourth Avenue Theatre.  Newspapers and historical preservation
societies applauded the renovation of the theater.  The newly
renovated theater re-opened in 1992.  
          The theater contains a gift shop, cafe, television
studio, movie and video theater, banquet room, and catering
company.  "Fourth Avenue Theatre" was used as the name for the gift
shop and cafe.  Iditarod advertised the theater on the radio and in
tourist publications.  The Fourth Avenue Theatre was listed among
the largest banquet facilities in the state.  At times, Iditarod
received letters from customers addressed to the "Fourth Avenue
Theatre," instead of to its corporate name. 
          In 1995 the Aldermans obtained a parking permit for their
trolley in front of the Fourth Avenue Theatre.  The Aldermans
approached Gottstein to inquire about selling tickets for their
trolley tour from the theater.  Gottstein and the Aldermans made an
oral agreement to rent the theater ticket booth as a location for
the Aldermans to sell trolley tickets, to rent office space in the
theater basement, and to have Iditarod employees sell trolley tour
tickets in the theater gift shop.  The Aldermans claim the parties
agreed that the rent was fifteen percent of ticket sales from the
ticket booth and gift shop only.  Iditarod claims the rent
agreement was for fifteen percent of the gross revenues from the
Aldermans' entire trolley tour business. 
          Despite the apparent misunderstanding, this arrangement
survived until about October 1997.  Other conflicts between
Iditarod and the Aldermans culminated in a final confrontation,
resulting in the Aldermans moving out of the theater and into an
office next door.  The Aldermans performed no accounting for 1997
rents owed to Iditarod. 
          Several months after the final disagreement, the
Aldermans registered the business name "Fourth Avenue Theater
Trolley Tours."  They had previously registered the name "Fourth
Avenue Trolley."  
          Gottstein investigated the possibility of Iditarod
operating a trolley tour business.  Iditarod requested a parking
permit in front of the theater that required moving the Aldermans'
trolley parking space.  The city allowed the Aldermans to choose a
different space farther down the street, but they selected a
location that was still partially in front of the theater.  By May
1998 Iditarod and the Aldermans were operating competing trolley
tours in front of the Fourth Avenue Theatre.  Both operated under
the name "Fourth Avenue Theater Trolley Tours."  Customers were
confused over which trolley tour business they had bought tickets
for. 
          In May 1998 Iditarod's counsel sent the Aldermans a cease
and desist letter demanding that the Aldermans stop using the name
"Fourth Avenue Theater."  The Aldermans rejected Iditarod's demand,
and Iditarod filed this lawsuit. 
          Iditarod alleged trade name infringement and requested an
injunction and damages.  The Aldermans' answer denied using the
name "Fourth Avenue Theater Trolley Tours."  They counterclaimed
against Iditarod for unfair competition, trade dress infringement,
intentional interference with contractual relations, breach of the
covenant of good faith and fair dealing, and punitive damages. 
          Both sides moved for partial summary judgment on various
issues.  Superior Court Judge Brian C. Shortell granted summary
judgment, holding that the Aldermans did not have an exclusive
right to use the name "Fourth Avenue Theater Trolley Tours" by
virtue of its registration under AS 10.35.040; that evidence did
not support the Aldermans' claim of intentional interference with
contractual relations; and that Iditarod had the right to use the
name "Fourth Avenue Theatre Trolley Tours."  The superior court
denied summary judgment on the Aldermans' claims that Iditarod
engaged in unfair competition; that the Aldermans had an exclusive
right to use the "Fourth Avenue Theater Trolley Tours" business
name under AS 10.35.040; and that Iditarod did not infringe the
Aldermans' trade dress. 
          Trial commenced in May 1999.  The Aldermans testified
that they used the trade name "Fourth Avenue Theater Trolley Tours"
in the fall of 1997.  At the close of evidence, the trial court
granted Iditarod's motion to amend its pleading to add a cause of
action for breach of contract.  
          By special verdict, the jury found that: (1) "Fourth
Avenue Theatre" was a trade name; (2) Iditarod owned the trade
name;  (3) the Aldermans used Iditarod's trade name in a way likely
to cause confusion; (4) Iditarod did not engage in unfair
competition; (5) Iditarod did not use trade dress belonging to the
Aldermans; (6) the Aldermans violated the rent agreement by failing
to pay fifteen percent of gross revenues from trolley tour tickets
sold at the theater; and (7) the amount of the breach was
$13,924.05.  Based on the verdict, the trial judge entered a
judgment on July 26, 1999. 
          On August 5 Iditarod moved for an award of attorney's
fees.  On August 19 the Aldermans filed a notice of appeal.  On
August 27 the trial judge denied Iditarod's motion for attorney's
fees without prejudice for failure to provide sufficient
specificity of actual fees incurred.  On November 4 Iditarod filed
a corrected motion for attorney's fees.  The trial court granted
Iditarod an enhanced award of $46,795, based on forty percent of
actual fees under Alaska Civil Rule 82(b)(3). 
          The Aldermans appeal the jury findings of Iditarod's
trade name and Aldermans' infringement of it, the summary judgment
ruling that the Aldermans did not have exclusive right to the name
"Fourth Avenue Theater Trolley Tours" under AS 10.35.040, the
amendment of the pleadings at the close of evidence, and the award
of attorney's fees. 
III. STANDARDS OF REVIEW
          Denial of summary judgment is reviewed de novo. [Fn. 3] 
Issues of statutory interpretation are questions of law that we
review in our independent judgment. [Fn. 4]  On questions of law,
our duty is to adopt the rule of law that is most persuasive in
light of precedent, reason, and policy. [Fn. 5]  
          We review a trial court's decision to permit amendment of
the pleadings for an abuse of discretion. [Fn. 6]  Jury
instructions that involve rules of law are reviewed de novo. [Fn.
7]  "The jury's factual findings, if supported by the evidence
presented at trial, will not be disturbed where there is room for
diversity of opinion among reasonable people." [Fn. 8]
          We review the trial court's award of attorney's fees for
an abuse of discretion. [Fn. 9]  We will find that a trial court
abused its discretion when, after reviewing the whole record, we
are left with a definite and firm conviction that the trial court
erred in its ruling. [Fn. 10]  If the award of attorney's fees
requires interpretation of Alaska Civil Rule 82, we perform an
independent review. [Fn. 11]
IV.  DISCUSSION
          Trade name infringement is an issue of first impression
for this court.  Alaska Statute 45.50.471(a) states that "[u]nfair
methods of competition and unfair or deceptive acts or practices in
the conduct of trade or commerce are declared to be unlawful."  AS
45.50.471(b) defines "unfair methods of competition" and "unfair or
deceptive acts or practices" to include acts:
               (3) causing a likelihood of confusion or
misunderstanding as to the source, sponsorship, or approval, or
another person's affiliation, connection, or association with or
certification of goods or services.[ [Fn. 12]]

Because the language of Alaska's unfair trade practices law echoes
that of federal trademark law found in the Lanham Act [Fn. 13] and
because interpretation and application of the Lanham Act is well
developed by existing case law in other jurisdictions, we look to
decisions of other courts interpreting the Lanham Act and other
states' trademark law where the text is similar to that of Alaska's
unfair trade practices law. [Fn. 14]  We begin with a brief
overview of trade name and trademark law.
     A.   Trademark and Trade Name Law in General
          1.   Terminology: trade name vs. trademark
          In the modern legal vernacular, "trade name" means a
symbol used to distinguish companies, partnerships, and businesses.
[Fn. 15]  By contrast, "trademark" refers to symbols used to
distinguish goods and services. [Fn. 16]  This distinction blurs
somewhat when talking about a service company -- does "Fourth
Avenue Theatre" distinguish the business or the services provided? 
Because "Fourth Avenue Theatre" is more typical of a business name
and the dispute here is over its use as a business name, we treat
this as a case involving a trade name rather than a trademark.
          The distinction between trade name and trademark,
however, is generally not a critical distinction, [Fn. 17] and we
conclude that it is not in this case.  The United States Supreme
Court noted the identity of protection for trademarks and trade
names:
          Whether the name of a corporation is to be
regarded as a trade-mark, a trade-name, or both, is not entirely
clear under the decisions.  To some extent the two terms overlap,
but there is a difference, more or less definitely recognized,
which is that, generally speaking, the former is applicable to the
vendible commodity to which it is affixed, the latter to a business
and its good will.  A corporate name seems to fall more
appropriately into the latter class.  But the precise difference is
not often material, since the law affords protection against its
appropriation in either view, upon the same fundamental
principles.[ [Fn. 18]]
          Protection of trade names and trademarks is the same
because trade names and trademarks serve the same basic purposes. 
"Although trade names [and] trademarks . . . are used differently,
they [both] serve the same basic purposes, that is, to identify a
business and its products or services, to create a consumer demand
therefor, and to protect any goodwill which one may create as to
his goods or services." [Fn. 19]  
          The same basic rules apply equally to trade names and
trademarks. [Fn. 20]  Trademarks and trade names are classified in
the same four categories.  Analysis of infringement for both
trademarks and trade names is done under a likelihood-of-confusion
test. [Fn. 21]  Trade names, like trademarks and other types of
trade symbols, are protected against use that is likely to cause
confusion even if the related infringing use is non-competitive.
[Fn. 22]  The term "trademark infringement" covers the use of one
party's trade name as a trademark on another's goods or services
[Fn. 23] as well as the use of one party's trademark as part of
another's corporate name. [Fn. 24]  Because the same basic rules
and rationales apply equally to trade names and trademarks, we rely
on trademark infringement case law in a trade name case such as
this.  
          2.   General concepts of trade name and trademark law
          "Two elements must be proved to establish a prima facie
case of unfair or deceptive acts or practices under the Alaska Act:
(1) that the defendant is engaged in trade or commerce; and (2)
that in the conduct of trade or commerce, an unfair act or practice
has occurred." [Fn. 25]  Neither party contests that the Aldermans
are engaged in trade or commerce.  Thus, the focus is on
establishing an unfair act or practice.
          According to AS 45.50.471(a)(3), it is an unfair act or
practice to "caus[e] a likelihood of confusion or misunderstanding
as to the source, sponsorship, or approval, or another person's
affiliation, connection, or association with or certification of
goods or services" [Fn. 26] -- in other words, trademark or trade
name infringement.  In general, to establish an unfair act or
practice like trade name infringement, "the law has traditionally
required proof of two basic elements: (1) Validity -- that the
public recognizes plaintiff's symbol as identifying his [business]
and distinguishing [it] from those of others, and (2) Infringement
-- that defendant's actions cause a likelihood of confusion among
the relevant buyer class." [Fn. 27]  Validity could be shown in
either of two ways: (a) that the symbol was inherently distinctive,
or (b) that even if not inherently distinctive, the symbol has
become distinctive through the acquisition of "secondary meaning,"
the mental association in buyers' minds between the trade name and
a single business.  Infringement is shown by analysis under a
multi-factor likelihood-of-confusion test.
     B.   "Fourth Avenue Theatre" Is a Valid Trade Name.
          1.   General types of trade names
          There are four types of trade names: (1) arbitrary or
fanciful, (2) suggestive, (3) descriptive (including  geographic or
personal name), and (4) generic. [Fn. 28]  They differ in level of
distinctiveness.  Arbitrary, fanciful, and suggestive trade names
are the most distinctive and qualify for protection under the
Lanham Act or common law.  Generic names are entirely non-
distinctive and cannot receive such protection.  In the middle are
descriptive trade names, which may or may not receive protection
depending on whether they have achieved a secondary meaning. [Fn.
29]
          Arbitrary, fanciful, and suggestive trade names are
inherently distinctive. [Fn. 30]  An arbitrary trade name is a
common word or symbol that is applied in a manner not suggestive or
descriptive of the business. [Fn. 31]  Examples of arbitrary trade
names and trademarks are Sun Microsystems, [Fn. 32] Stork Club (as
a night club), [Fn. 33] and Nova (as a television series). [Fn. 34] 
A fanciful trade name is a word coined expressly for use as a trade
name or an obscure or archaic term not inherently familiar to
buyers. [Fn. 35]  Examples of fanciful trade names and trademarks
include Exxon, [Fn. 36] Polaroid, [Fn. 37] and Clorox. [Fn. 38] 
Arbitrary and fanciful trade names are broadly protected as strong
trade names because their novelty identifies them uniquely to
consumers; [Fn. 39] the recognition of an arbitrary or fanciful
name is almost entirely a reflection of the reputation developed by
the single user.
          Suggestive terms "connote, rather than describe," some
particular product or service; they require "use of the consumer's
ingenuity to envisage the nature of the product or service." [Fn.
40]  Some examples of trade names and trademarks held to be
suggestive rather than descriptive are Citibank, [Fn. 41] Orange
Crush, [Fn. 42] and Tie Rak. [Fn. 43]  The concept of suggestive
trademarks developed to avoid the draconian result of the 1905
Trademark Act's lack of protection for descriptive marks. [Fn. 44] 
Courts could uphold the registration of trademarks that were only
subtly "descriptive" by placing them in the inherently distinctive
category of suggestive trademarks. [Fn. 45]
          Generic names lie at the other end of the distinctiveness
spectrum and are not protected. [Fn. 46]  Generic names are the
actual names of the goods or services and, thus, cannot be
distinctive of a unique source. [Fn. 47]  Some examples of terms
held to be generic are Discount Mufflers, [Fn. 48] Convenient
Store, [Fn. 49] and Lite Beer. [Fn. 50]  Generic names are not
protectable as trade names because doing so would effectively
remove words of common usage from the commercial vernacular.  To
permit exclusive trade name rights in a generic name would grant
the owner of the generic name a monopoly because a competitor could
not describe his business by its common generic term. [Fn. 51]
          Descriptive terms fall between generic names and
suggestive trade names in distinctiveness. [Fn. 52]  A term is
descriptive if it describes the intended purpose, function, or use
of the goods, the size of the goods, the class of the users of the
goods, a desirable characteristic of the goods, the nature of
goods, or the end effect upon the user. [Fn. 53]  Some examples of
trade names and trademarks found to be descriptive are Beer Nuts,
[Fn. 54] Fashionknit, [Fn. 55] and Raisin-Bran. [Fn. 56]
          Descriptive terms are categorized as inherently non-
distinctive and, as such, entitled to protection only upon a
showing of "secondary meaning" or a mental connection between the
trade name and a single business. [Fn. 57]  The United States
Supreme Court has stated two reasons for this extra requirement for
protection. [Fn. 58]  First, because descriptive terms can be
truthfully applied to a whole range of goods and services, a
descriptive term cannot, per se, function to identify and
distinguish the goods or services of only one seller in the
marketplace.  A descriptive term merely informs the buyer of an
alleged quality of the product but does not help the consumer to
distinguish between products of different sellers. [Fn. 59] 
Second, descriptive terms are regarded as words in the "public
domain" in the sense that all sellers should be free to truthfully
use these terms to describe their merchandise.  "[O]ne competitor
will not be permitted to impoverish the language of commerce by
preventing his fellows from fairly describing their own goods."
[Fn. 60] 
          A subcategory of descriptive terms is the geographically
descriptive term. [Fn. 61]  Examples include ALASKA, [Fn. 62] Bank
of America, [Fn. 63] and Boston. [Fn. 64]  Proof of secondary
meaning is required for protection of geographically descriptive
names for the same reasons that secondary meaning is required for
descriptive names. [Fn. 65] 
          Personal names are another subcategory of descriptive
names.  Examples include Gucci [Fn. 66] and Waterman. [Fn. 67] 
They too are considered inherently non-distinctive for reasons
similar to those for descriptive terms and gain protection only by
secondary meaning. [Fn. 68]
          2.   Composite trade names
          Terms that are a combination of two or more types are
called composite names.  The proper analysis of a composite is to
look at the name as a whole, not to dissect it into its component
parts. [Fn. 69]  Thus, a composite generic-descriptive name may
result in a protectable trade name. [Fn. 70]  The United States
Supreme Court has stated the reason for this anti-dissection rule: 
"The commercial impression of a trade mark is derived from it as a
whole, not from its elements separated and considered in detail. 
For this reason it should be considered in its entirety . . . ."
[Fn. 71]  The anti-dissection rule is not violated, however, by
separately analyzing the component parts as a step in making the
ultimate determination of probable customer reaction to the
composite as a whole. [Fn. 72]
          In Self-Realization Fellowship Church v. Ananda Church of
Self-Realization, the Ninth Circuit applied the anti-dissection
rule. [Fn. 73]  The court held that "Self-Realization" was generic
for "a class of organization dedicated to spiritual attainment in
the manner taught by Yoga," and descriptive (without secondary
meaning) of books and tapes sold by such an organization. [Fn. 74] 
In addition, the court noted that "Church" and "Fellowship" were
generic in connection with a spiritual organization's name. [Fn.
75]  Thus, "Self-Realization," "Fellowship," and "Church" were not
protectable individually as trade names or trademarks.  However,
the composites of "Self-Realization Fellowship" and
"Self-Realization Fellowship Church" were potentially protectable
as composites. [Fn. 76]  The Ninth Circuit ruled that the district
court erred in concluding that the composites were unprotectable
based upon the analysis of the component parts and remanded for
consideration as composite names. [Fn. 77]
          3.   "Fourth Avenue Theatre" is a composite descriptive
name.

          The Aldermans argue that "Fourth Avenue Theatre" is not
a distinctive name entitled to protection.  They  suggest that
"Fourth Avenue Theatre" is a geographically descriptive name, and,
without more, is not distinctive enough to warrant trade name
protection.  Iditarod does not dispute that "Fourth Avenue Theatre"
is a descriptive name, arguing instead that the name has gained
secondary meaning and is thus protectable. 
          "Fourth Avenue Theatre" is a composite name.  "Fourth
Avenue" is geographically descriptive.  "Theater" is generic of a
type of business.  Looking at the whole, "Fourth Avenue Theatre" is
still a descriptive name. [Fn. 78]  As a composite descriptive
trade name, "Fourth Avenue Theatre" must have acquired a secondary
meaning in the minds of consuming public to be entitled to
protection against infringement.
          4.   Secondary meaning generally
               Marks which are merely descriptive of a
product are not inherently distinctive.  When used to describe a
product, they do not inherently identify a particular source, and
hence cannot be protected.  However, descriptive marks may acquire
the distinctiveness which will allow them to be protected under the
Act.  Section 2 of the Lanham Act provides that a descriptive mark
that otherwise could not be registered under the Act may be
registered if it "has become distinctive of the applicant's goods
in commerce."  

               This acquired distinctiveness is
generally called "secondary meaning."[ [Fn. 79]] 
          The North Carolina Supreme Court elaborated on the
acquired distinctiveness called "secondary meaning":
               When a particular business has used words
          publici juris for so long or so exclusively or
when it has promoted its product to such an extent that the words
do not register their literal meaning on the public mind but are
instantly associated with one enterprise, such words have attained
a secondary meaning.  This is to say, a secondary meaning exists
when, in addition to their literal, or dictionary, meaning, words
connote to the public a product from a unique source.[ [Fn. 80]]

Thus, secondary meaning mainly concerns the mental association in
buyers' minds between the trade name and a particular business.
[Fn. 81] 
          Secondary meaning refers to the meaning developed second
in time. [Fn. 82]  The primary or original meaning of a name is the
general understanding of the words before the trade name gained
distinction.  In this case, the original meaning of the words
"Fourth Avenue Theatre" is a movie house located on Fourth Avenue
in some city.  Over time, the name "Fourth Avenue Theatre" may
attain secondary meaning when consumers identify the name with the
one specific, historic landmark theater on Fourth Avenue in
Anchorage. [Fn. 83]
          The more descriptive the term, the closer it is to a
generic name, and the greater the evidentiary burden on the party
attempting to prove secondary meaning. [Fn. 84]  Like all trade
names, descriptive trade names fall on a spectrum of
distinctiveness.  Some terms are only slightly descriptive and need
only a minimum quantum of evidence to prove secondary meaning. 
Other terms are highly descriptive and may need a substantial
quantity of significant secondary-meaning evidence to be
protectable as a trade name. [Fn. 85]  
          In this case, "Fourth Avenue Theatre" is highly
descriptive because the words alone describe a business and its
location in common terms.  The words could refer to any theater on
Fourth Avenue.  Accordingly, a substantial amount of evidence would
be needed to prove secondary meaning.  
          Factors that support finding secondary meaning include
both direct and circumstantial evidence.  Direct evidence factors
are consumer testimony and consumer surveys. [Fn. 86] 
Circumstantial evidence factors include (1) exclusivity, length,
and manner of use; (2) amount and manner of advertising; (3) amount
of sales and number of customers; (4) established place in the
market; and (5) proof of intentional copying. [Fn. 87]  Some courts
add a sixth factor:  unsolicited media coverage. [Fn. 88]  "[N]o
single factor is determinative, and every element need not be
proved." [Fn. 89]
          The party seeking to establish the trade name is not
required to prove that the term is recognized as a trade name by
all prospective purchasers in the relevant market nor even by a
majority of them.  Instead, secondary meaning exists if a
"significant number of prospective purchasers" connect the term
with a particular entity. [Fn. 90]  Many courts require only that
a "substantial part" of the buying class makes such an association.
[Fn. 91] 
          5.   The jury finding that "Fourth Avenue Theatre" had
acquired a secondary meaning was supported by the evidence.
          The Aldermans contend that the superior court erred as a
matter of law in determining that "Fourth Avenue Theatre" was a
trade name.  Whether or not a symbol has acquired secondary meaning
is a question of fact. [Fn. 92]  In this case, Iditarod has
provided sufficient evidence -- both direct and circumstantial --
to support the jury finding of secondary meaning.
          Iditarod presented direct evidence of its trade name
"Fourth Avenue Theatre" by the letters from its customers using
that name.  Evidence that buyers sent letters to a company with the
trade name, rather than the corporate name, as the addressee tends
to prove consumer association between the trade name and the
corporate source. [Fn. 93]  In the instant case, Iditarod has
presented three letters addressed to the "Fourth Avenue Theatre." 
This partially supports the jury's determination that "Fourth
Avenue Theatre" has secondary meaning.
          Three of the circumstantial evidence factors
(exclusivity, length, and manner of use; established place in the
market; and amount and manner of advertising) also support the
finding of secondary meaning.  The factor of exclusivity, length,
and manner of use strongly favors Iditarod.  The Fourth Avenue
Theatre first opened around 1947.  Even the Aldermans considered it
to be a historic landmark in Anchorage.  When Iditarod purchased
the Fourth Avenue Theatre in 1991, it restored the theater to its
original appearance and continued to use its original name.  
          The Fourth Avenue Theatre's established place in the
market is shown by its appearance in newspapers and trade journals.
Dictionaries, trade journals, magazines, and newspapers using a
trade name to identify a business show that the business is
commonly associated with that trade name.  If the business is
recognized by its trade name in professional circles, the buyer
class is also likely to recognize the business by the trade name.
[Fn. 94]  Here, Iditarod has presented substantial evidence showing
the use of the trade name "Fourth Avenue Theatre" in newspapers and
trade journals. 
          Advertising also helps support a finding of secondary
meaning.  Iditarod has provided substantial evidence of its
advertising for the Fourth Avenue Theatre. 
          In sum, Iditarod presented ample direct and
circumstantial evidence of secondary meaning. [Fn. 95]  We conclude
that the jury verdict finding that the name "Fourth Avenue Theatre"
had acquired secondary meaning was supported by the evidence.
          6.   Iditarod's trade name gained its secondary meaning
prior to use by the Aldermans.

          The general rule of priority for inherently distinctive
trade names is that the first or senior user is entitled to legal
protection. [Fn. 96]  Priority for inherently non-distinctive trade
names  like "Fourth Avenue Theatre" is more complex.  Because
rights by secondary meanings are gained solely by public
recognition and association, the issue of priority and ownership is
not which party first used the name, but which party first achieved
secondary meaning in the trade name. [Fn. 97]  This would logically
require a rule awarding priority to the party who was the first in
a race to acquire secondary meaning.  Instead, the rule has evolved
to "an easier-to-apply, but stricter, surrogate test: the senior
user must prove the existence of secondary meaning in its mark at
the time and place that the junior user first began use of that
mark." [Fn. 98]
          Almost all of Iditarod's evidence of secondary meaning
existed prior to the Aldermans' alleged first use.  The Aldermans
claim that they used the name "Fourth Avenue Theater Trolley Tours"
in the fall of 1997.  Only Iditarod's marginally relevant supplier
invoices post-date the fall of 1997; the remainder of Iditarod's
evidence of secondary meaning pre-dates the Aldermans' first use. 
Thus, the same evidence that strongly supports the finding of
secondary meaning also supports a finding that the secondary
meaning had developed before the Aldermans' first alleged use.  We
conclude that the jury verdict finding that the trade name "Fourth
Avenue Theatre" belonged to Iditarod was supported by the evidence.
     C.   The Aldermans' Use of the Name "Fourth Avenue Theater
Trolley Tours" Infringed Iditarod's Trade Name.

          1.   Trade name infringement does not require direct
competition.

          The Aldermans argue that there can be no likelihood of
confusion unless there is competition.  They correctly state that
the trade name "Fourth Avenue Theatre" does not automatically
protect all conceivable goods or services emanating from that
business.  The Aldermans then suggest that the scope of protection
for the trade name is limited to goods or services already in
existence. 
          This is wrong.  Despite the terminology "unfair
competition," the vast majority of modern decisions have adopted
the rule that competition is not necessary between the parties for
there to be a likelihood of confusion. [Fn. 99] "Confusion, or the
likelihood of confusion, not competition, is the real test of
trademark infringement." [Fn. 100]
          There are four reasons for this broad protection of a
trade name.  First, protection from trade name use by non-competing
businesses prevents placing the trade name holder's reputation in
another's hands. [Fn. 101]  Second, it protects consumers from
confusion. [Fn. 102]  Third, it allows a zone of natural expansion.
[Fn. 103]  Fourth, it prevents unjust enrichment of the junior user
-- "reaping where one has not sown" and "riding the coat-tails" of
the senior user. [Fn. 104]
          The related goods doctrine is the modern rule. [Fn. 105] 
This doctrine extends trade name protection beyond businesses in
direct competition to businesses that are related. [Fn. 106]  "The
[junior's] use need not be the same as, nor one in competition
with, the original use in order to infringe." [Fn. 107]  Instead,
the junior's use will infringe if it is likely to cause consumer
confusion.  
          2.   Likelihood of confusion generally
          "Likelihood of confusion" is the basic test of both
common-law trademark infringement [Fn. 108] and federal statutory
trademark infringement. [Fn. 109]  State statutes modeled after the
Lanham Act also use the same likelihood-of-confusion test. [Fn.
110]
          The test has been stated in these terms:  An appreciable
number of reasonable buyers must be likely to be confused by the
names for trade name infringement or unfair trade practice
liability. [Fn. 111]  "Appreciable number" escapes a numerical
value, but most courts find that a majority of confused customers
is not needed.  Some courts have found survey evidence of even low
percentages of actual confusion to be strong evidence of a
likelihood of confusion. [Fn. 112]  "Likely" has been interpreted
as synonymous with probable, but not merely possible, confusion.
[Fn. 113]
          "Confusion" is a broad concept.  Many courts have
recognized not only point-of-sale confusion, but also post-sale
confusion, pre-sale confusion, and even reverse confusion (where
the junior user's advertising swamps the market and consumers are
likely to think that the senior user's goods or services are those
of the junior). [Fn. 114]  Also, "confusion" is not limited to
confusion as to the source of goods or services; "confusion"
includes confusion as to "affiliation, connection, or association."
[Fn. 115]  
          The relevant class of people is purchasers and potential
customers. [Fn. 116]  Both the senior and junior users' customers
should be considered. [Fn. 117]  "Brand indifferent" customers are
not relevant to the likelihood-of-confusion determination. [Fn.
118]
          In determining infringement of a trade name, the court
must take into account the goods and services of the contesting
companies.  Goods-related factors are important to consider in
determining infringement of a trade name by another's use of a
trade name.  "The trade name interests that [the senior user] seeks
to protect relate to the quality and reputation of the goods it
produces [or the services it provides]." [Fn. 119] 
          There are at least three ways to prove a likelihood of
confusion: (1) survey evidence; (2) evidence of actual confusion;
or (3) argument based on a clear inference arising from a
comparison of the conflicting marks and the context of their use.
[Fn. 120]  While not required, actual confusion is a powerful
indicator of a likelihood of confusion. [Fn. 121]  "There can be no
more positive or substantial proof of the likelihood of confusion
than proof of actual confusion." [Fn. 122]
          The factors used to determine the likelihood of confusion
vary from court to court, but most courts appear to have derived
their tests from the factors listed in the Restatement of Torts.
[Fn. 123]  The factors considered by the Ninth Circuit are:
          1.   strength of the mark; 
          2.   proximity of the goods; 
          3.   similarity of the marks; 
          4.   evidence of actual confusion; 
          5.   marketing channels used; 
          6.   type of goods and the degree of care
               likely to be exercised by the purchaser;
          7.   defendant's intent in selecting the mark;
               and 
          8.   likelihood of expansion of the product
               lines.[ [Fn. 124]]

          In the instant case, the trial court used a six-factor
test in its instructions to the jury:
          Likelihood of confusion is also determined by
evaluating the following factors:
          (1)  the degree of similarity of the names;
          (2)  the manner and method in which the
plaintiff and defendant used the names;
          (3)  the strength of the name, "4th Avenue
Theatre";
          (4)  the length of time the parties used the
names without evidence of actual confusion;
          (5)  the intent of a party in adopting the
name, "Fourth Avenue Theater," that is, whether there was an intent
to confuse;
          (6)  other factors about the name, "Fourth
Avenue Theater" that would tend to reduce any tendency to confuse
the purchaser about the source or origin of the trolley service 
This formulation is not erroneous.  While the tests are similar,
the Ninth Circuit test is preferrable because it is more
comprehensive and well developed by case law.
          3.   The jury finding of a likelihood of confusion was
supported by the evidence.
          "The jury's finding on the likelihood of confusion issue
is factual and must be affirmed if it was based on substantial
evidence . . . ." [Fn. 125]  The jury found that "Fourth Avenue
Theatre" would likely be confused with "Fourth Avenue Theater
Trolley Tours."  Substantial evidence supports this finding. [Fn.
126]
          Regarding the strength of the trade name, Iditarod
presented substantial evidence of secondary meaning. [Fn. 127]  The
stronger the evidence of secondary meaning, the stronger the mark,
and the greater the scope of protection because confusion is more
likely. [Fn. 128]  This evidence of secondary meaning supports the
jury's finding.
          Other evidence shows that both Iditarod and the Aldermans
provided tourist attractions that operated side-by-side.  The
similarities between their businesses indicate the danger that
consumers will mistakenly assume an association between related
businesses. [Fn. 129] 
          The evidence also shows that the disputed trade names are
similar in sight, sound, and meaning. [Fn. 130]  Here, "Fourth
Avenue Theatre" is exactly the same as the first part of the name
"Fourth Avenue Theater Trolley Tours."  The addition of the
descriptive "Trolley Tours" does not avoid a likelihood of
confusion. [Fn. 131]
          Evidence of actual confusion also strongly supports a
finding of likely confusion.  Both sides acknowledge that once
Iditarod started its trolley service, there was actual consumer
confusion. 
          Iditarod also presented evidence that the Aldermans
intentionally infringed the trade name.  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 intentially
infringed Iditarod's trade name, it also supports the jury finding.
          Finally, Iditarod proved a likelihood of expansion when
it presented evidence that it launched its own trolley tour
business in the spring of 1998.  We conclude that the jury's
finding of likely confusion was amply supported by the evidence.
     D.   The Trial Court Correctly Interpreted AS 10.35.040 to
Require Prior Use for Valid Registration of a Business Name and
Properly Denied Summary Judgment That the Aldermans Had Made Prior
Use of the Name "Fourth Avenue Theater Trolley Tours."

          The Aldermans argue that the trial court erred by denying
their motion for summary judgment that registration of the business
name "Fourth Avenue Theater Trolley Tours" gave them exclusive
right to use that name.  The trial court concluded that AS
10.35.040 required prior use of the name for valid registration 
and found that the Aldermans had admitted in their answer that they
had made no prior use of the name at the time it was registered. 
First, the Aldermans contend that the trial court erred by denying
summary judgment both legally by misinterpreting AS 10.35.040 and
factually by finding on summary judgment that they had not used the
name prior to registration.  Second, they argue that the court
erred when instructing the jury. 

          Alaska Statutes 10.35.010-.500 provide procedures for
reserving and registering business names.  At the time relevant in
this case, former AS 10.35.040 covered the registration of a
business name, [Fn. 132] while former AS 10.35.020 covered the
reservation of a business name. [Fn. 133]
          The Aldermans first note that trademark law protects a
prior user of a trade name.  They then contend that if prior use of
a business name were required for registration, the exclusive right
to use the name conveyed by statute would be redundant with common
law trademark rights.  Because requiring prior use makes the
statute redundant, the Aldermans argue that such an interpretation
must be incorrect. 
          We first note that the text of former section .040 stated
that "[a] person conducting a business may register its name." [Fn.
134]  In contrast, former section .020 applied to reserving a
business name "by a person intending to start a business."  The
plain meaning of these two statutes is as follows: former section
.020 applied to reserving a name for a new business, and former
section .040 applied to registering a name for an existing business
-- in other words, a business name with prior use. [Fn. 135]
          We do not stop at the plain meaning of the statute,
however; we also consider legislative history in our sliding scale
approach to statutory interpretation. [Fn. 136]  In order to
interpret a statute contrary to its plain meaning, "the plainer the
language, the more convincing contrary legislative history must
be." [Fn. 137]  In this case, the Aldermans have not presented, nor
have we found, any legislative history indicating that section .040
was intended to allow registration of new business names.
          The Department of Community and Economic Development,
which administers business name registration, agreed.  The
department's publically available instructions interpreted business
name registration under former AS 10.35.040:
               Unlike a name reservation, in order to
register a business name, a person must be "transacting business"
under the name being registered.  Transacting business means that
the name is used in advertising, on accounts of record, on licenses
and permits, stationery, or similar means of publicly identifying
the name of a company. 
In other words, according to the interpretation of the agency
administering the statute, registering a business name under former
AS 10.35.040 required the applicant to be transacting business
under the name, while reserving a business name under former AS
10.35.020 did not require such prior use.  Because AS 10.35.040
plainly required prior use and no legislative history exists to the
contrary, we hold that the trial court correctly interpreted AS
10.35.040 to require prior use for valid registration of a business
name.
          We note that granting "exclusive use" of a business name
to a junior user, but first registrant, allows the junior user to
usurp the business name of a senior, but unregistered, user.  The
majority rule is that administrative acceptance of a corporate name
by a state agency will be given no judicial weight in litigation
over rights to the name, [Fn. 138] reasoning that "a state [does
not intend] to license the commission of what would otherwise be a
tortious act" simply by allowing registration under its laws. [Fn.
139]  However, AS 10.35.040 is different from most states'
registration statutes because it expressly grants a right to
"exclusive use" of a business name and lists remedies of injunction
and damages.  In any event, we need not resolve today this conflict
between the exclusive right to a business name by registration or
reservation under AS 10.35.010-.500 and the right to protect a
trade name against unfair competition under AS 45.50.471, because
the Aldermans were not entitled to summary judgment that they made
prior use of the trade name "Fourth Avenue Theater Trolley Tours"
as required for valid registration.
          The Aldermans argue that the trial court erred in finding
on summary judgment that they had not used the business name prior
to registration.  They claim that they were using the name prior to
registration and that they presented substantial testimony of prior
use at trial.  The Aldermans' testimony, however, was presented
only after summary judgment was denied.  At summary judgment, the
only evidence concerning prior use was the Aldermans' denial of
prior use made in their answer to the complaint.  Based on the
evidence before the trial court at summary judgment, the trial
court did not err in denying the Aldermans' motion.
          The Aldermans also argue that the trial court's
instruction to the jury on AS 10.35.040 was erroneous.   After the
Aldermans testified at trial to prior use of the trade name, the
trial court recognized that the Aldermans' prior use was a question
of fact for the jury.  The trial court instructed the jury on AS
10.35.040 with the same interpretation it had applied at summary
judgment -- valid registration required prior use.  Because the
trial court's interpretation on summary judgment was correct, the
trial court's jury instruction was likewise correct.
     E.   It Was an Abuse of Discretion to Allow Iditarod To Amend
the Pleadings To Include a Cause of Action for Breach of Contract
after the Close of Evidence.

          After the close of evidence, the trial court allowed
Iditarod to amend its complaint to add a cause of action for breach
of contract.  The court reasoned that amendment was proper because
evidence of the contract's existence and terms had been presented
by both parties.  We review a trial court's decision to permit
amendment of the pleadings for an abuse of discretion. [Fn. 140]
          The Aldermans contend that whether the judge allowed
amendment under Alaska Civil Rule 15(a) or 15(b), [Fn. 141]
amendment of the pleadings is improper when prejudicial to the
party opposing amendment, citing Betz v. Chena Hot Springs Group
[Fn. 142] and Federal Practice and Procedure sec. 1493. [Fn. 143] 
They argue that they were prejudiced by the amendment of the
pleadings and that the trial court therefore abused its discretion. 
          Iditarod contends that Betz does not apply because the
judge allowed amendment according to Rule 15(b), not 15(a).  In
addition, Iditarod argues that the Aldermans impliedly consented to
the new issue by counterclaiming for breach of the covenant of good
faith and fair dealing, failing to object when evidence on the new
issue was presented, and presenting evidence relevant to the new
breach of contract claim. 
          The trial court did not specify whether it granted the
amendment of the pleadings under Civil Rule 15(a) or 15(b).  Either
could apply.  Rules 15(a) and 15(b) substantially overlap, and
there is no strong textual basis for concluding that only Rule
15(b) applies to amendments made during or after trial. [Fn. 144] 
Prejudice to the opposing party is an important consideration under
either section of the rule. [Fn. 145]  We conclude that the
Aldermans were prejudiced by the inability to present evidence as
to the amount of rent due (fifteen percent of the tickets sold at
the Fourth Avenue Theatre) because the trial court allowed
amendment of the pleadings after the close of evidence. 
Accordingly, under either Civil Rule 15(a) or (b), the trial court
abused its discretion.
          1.   Amendment of the pleadings under Civil Rule 15(a)
was improper because the prejudice to the Aldermans outweighed the
hardship to Iditarod.

          For amendment under Civil Rule 15(a), we have instructed
that the trial court "must apply a balancing test to decide whether
the amendment should be granted, weighing the degree of prejudice
to the opposing party against the hardship to the movant if the
amendment is denied." [Fn. 146]  A trial court may also deny
amendment when it is unduly delayed, offered in bad faith, or
futile. [Fn. 147]
          Iditarod's attempt to amend the pleadings to include the
breach of contract claim was unduly delayed.  In October 1997
Iditarod knew that the Aldermans had failed to pay rent according
to the lease agreement, well before it filed its complaint against
them in June 1998.  While we have stated that delay alone is an
insufficient basis upon which to deny a motion to amend, [Fn. 148]
this weighs against allowing the amendment.
          The Aldermans argue that they were prejudiced by the
amendment at the close of evidence because at that point it was too
late to present evidence that their rent agreement provided that
they would pay fifteen percent of trolley tour ticket sales from
the Fourth Avenue Theatre, not fifteen percent of their gross
revenues.  But the Aldermans admit that they both testified at
trial that the rent agreement was for fifteen percent of sales from
the theater ticket booth.  The trial judge correctly found that
both sides had actively litigated the issue.  And in fact, the way
the special verdict was worded, there was apparent agreement that
the contract was for fifteen percent of the revenues from trolley
tour tickets sold at the Fourth Avenue Theatre in 1997.  Because
the jury apparently adopted the Aldermans' version of the contract,
they were not prejudiced by their inability to present additional
evidence on the terms of the contract.
          But the Aldermans also argue that they were prejudiced
because the jury had no way to determine appropriate damages from
the evidence actually presented.  They note that the only evidence
of their revenues presented to the jury was gross revenues, which
did not separate out the revenues generated at the Fourth Avenue
Theatre from those revenues generated elsewhere.  Thus, although
the jury found that the contract terms were for fifteen percent of
revenues generated by ticket sales at the theater, the jury could
only, and did, make an award based on the Aldermans' gross revenues
from all sales.  Our review of the record supports the Aldermans'
claim that the evidence contained no breakdown of the gross
revenues between ticket sales at the Fourth Avenue Theatre and all
other sales.   The inability to present this evidence substantially
prejudiced the Aldermans.
          The hardship to Iditarod did not outweigh the prejudice
to the Aldermans.  If the amendment had not been permitted,
Iditarod may still have been able to collect its unpaid rents. [Fn.
149]  In any event, Iditarod's hardship is caused by its own lack
of diligence.  Thus, the trial court erred by allowing amendment of
the pleadings after the close of evidence under Civil Rule 15(a).
          2.   Amendment of the pleadings under Civil Rule 15(b)
was improper because the Aldermans did not impliedly consent to
litigation of the breach of contract issue.

          Analysis of Rule 15(b) [Fn. 150] amendment of the
pleading is slightly different.  Application of this rule is
appropriate in two general situations: when evidence supporting the
amendment was offered at trial (1) with the opposing party's
express or implied consent, or (2) over the the opposing party's
objection that the evidence is not within the issues raised by the
pleadings. [Fn. 151]  In determining implied consent, prejudice to
the party opposing amendment is relevant. [Fn. 152]
          The Aldermans neither expressly consented to the
amendment nor did they object to Iditarod's presentation of the
evidence.  Thus, the only way amendment of the pleadings would have
been appropriate under Rule 15(b) is if the Aldermans had impliedly
consented to litigating the breach of contract issue.
          Professors Wright, Miller, and Kane explain Rule 15(b)'s
concept of implied consent:  "Implied consent . . . is . . .
difficult to establish and seems to depend on whether the parties
recognized that an issue not presented by the pleadings entered the
case at trial.  If they do not, there is no consent and the
amendment cannot be allowed." [Fn. 153] 
          The Aldermans apparently failed to recognize that breach
of contract was at issue in the trial.  They did not offer any
evidence of appropriate damages according to their interpretation
of the contract -- revenues of ticket sales from the Fourth Avenue
Theatre.  While the Aldermans did offer evidence of their
interpretation of the contract terms and of their total revenues
from all sources, introduction of evidence does not indicate
implied consent where the evidence offered is relevant to issues
already in the case. [Fn. 154]  Because the evidence was relevant
to the Aldermans' counterclaims and Iditarod's claim for trade name
infringement damages, the Aldermans' introduction of evidence did
not show implied consent.
          In sum, neither Rule 15(a) nor Rule 15(b) provides
appropriate grounds for granting amendment of the pleadings after
the close of evidence in this case.  Accordingly, we vacate the
award for breach of contract.
     F.   The Trial Court Did Not Abuse Its Discretion in Awarding
Attorney's Fees to Iditarod.

          The Aldermans contend that the trial court erred in
applying Rule 82(b)(2) as a matter of law.  They further argue that
the trial judge abused his discretion in granting attorney's fees
because Iditarod waived its right to seek fees. 
          1.   The trial court did not abuse its discretion by
allowing Iditarod seventy days to file a corrected motion for
attorney's fees.

          The Aldermans argue that Iditarod's failure to timely
file its corrected motion for Rule 82 attorney's fees waived its
claim.  Iditarod contends that its original defective motion was
timely and the trial judge allowed it unspecified additional time
to correct; thus, its second motion was also timely. [Fn. 155] 
          Rule 82(c) establishes the time limits for filing a
motion for attorney's fees:
          Failure to move for attorney's fees within 10
days, or such additional time as the court may allow, shall be
construed as a waiver of the party's right to recover attorney's
fees.[ [Fn. 156]]

The trial court distributed its judgment on July 26, 1999; Iditarod
timely filed its original motion for attorney's fees on August 5. 
The question is whether the trial court abused its discretion by
allowing Iditarod seventy additional days to file its second
motion.  We have not yet interpreted the phrase "or such additional
time as the court may allow." [Fn. 157]
          Rule 82(c) gives the court discretion to allow additional
time for filing a motion for attorney's fees.  Prior to the
adoption of the current version of Rule 82, we held that the trial
court had discretion to allow motions for attorney's fees within a
reasonable amount of time. [Fn. 158]  In T & G Aviation v. Footh,
we held that a motion filed seventy days after final judgment was
within a reasonable amount of time. [Fn. 159]  Here, Iditarod filed
its corrected motion seventy days after the first motion was denied
without prejudice.  The delay was not as serious as in T & G
Aviation because Iditarod timely filed its initial motion.
          The Aldermans urge us to adopt the T & G Aviation
dissent's view.  But even if we did, it would be to no avail.  The
dissent argued that, without persuasive explanation of further
delay, thirty days should be the outside limit of reasonableness. 
A losing party has thirty days to decide to appeal; a delay of more
than thirty days in filing for attorney's fees may be prejudicial
to the losing party if the losing party bases its decision to
appeal on the size of an adverse award of attorney's fees. [Fn.
160]  This rationale, however, does not directly apply if the
losing party decides to appeal without considering the possible
adverse award of attorney's fees.  Here, the Aldermans filed their
appeal on August 18.  They did not wait for the trial court's
decision regarding attorney's fees.  Thus, the allegedly tardy
motion for attorney's fees did not prejudice the Aldermans'
decision to appeal.
          Because a seventy-day delay is not unreasonable after the
filing of a timely motion and because the Aldermans were not
prejudiced by the delay, we conclude that it was within the trial
court's discretion to allow the delay.
          2.   The trial court did not err as a matter of law by
applying Rule 82(b)(2).

          The Aldermans contend that award of attorney's fees under
Rule 82(b)(2) was improper because Iditarod obtained a money
judgment -- $13,924.05 for the Aldermans' breach of contract. 
According to the Aldermans, Iditarod is entitled to attorney's fees
based upon a percentage of the amount of the judgment under Rule
82(b)(1), not the actual amount of attorney's fees. 
          Iditarod responds that the main issue in the litigation
was the trade name infringement and that there was no money
judgment on that issue.  Iditarod extrapolates from the rule that
the prevailing party is determined by success on the main issue to
a proposed interpretation of Rule 82(b) that the determination of
whether a money judgment was recovered is based only on the award,
or lack, of a money judgment on the main issue. 
          We need not reach the issue.  Because we vacated the
monetary judgment for breach of contract in light of the erroneous
amendment of the pleading after the close of evidence, the
Aldermans' argument is rendered moot.  After we vacate the breach
of contract award, only the trade name issues remain.  Iditarod is
the prevailing party on the trade name issues and, by this
decision, recovers no money judgment.  Whether the trial court
properly applied Civil Rule 82(b)(2) is moot; undoubtedly Rule
82(b)(2) applies now.
          3.   Iditarod did not waive its claim to an enhanced
attorney's fee award because it did not request an enhanced award
in its original motion. 
          The Aldermans argue that because Iditarod did not ask for
an enhanced attorney's fees award in its original defective motion
for attorney's fees, it waived any claim to an enhanced fees award
under Rule 82(b)(3).  Iditarod argues that the trial judge did not
place any restrictions upon the amount of fees Iditarod could
request in a revised motion. 
          The trial judge denied Iditarod's initial motion for
attorney's fees stating, "This denial is without prejudice to its
right to re-apply and make the appropriate showing."  Black's Law
Dictionary defines "without prejudice" as follows: "Where . . . a
motion is denied . . . 'without prejudice,' it is meant as a
declaration that no rights or privileges of the party concerned are
to be considered as thereby waived or lost, except in so far as may
be expressly conceded or decided." [Fn. 161]  The trial judge made
no express limitations on Iditarod's ability to re-apply.  The
trial court's denial without prejudice effectively declared that
none of Iditarod's rights to attorney's fees were considered waived
or lost.  Thus, Iditarod did not waive its right to move for an
enhanced award in its subsequent motion for attorney's fees, and
the trial court did not abuse its discretion in considering and
granting an enhanced attorney's fees award.
V.   CONCLUSION
          Because the trial court correctly applied trade name law
and the jury verdict was supported by the evidence, we AFFIRM the
judgment that the Aldermans infringed Iditarod's trade name "Fourth
Avenue Theatre."  We also AFFIRM the trial court's interpretation
of AS 10.35.040.  Because the Aldermans were substantially
prejudiced by the amendment of the pleading after the close of
evidence, we REVERSE the trial court's grant of the motion to amend
the pleadings and VACATE the award for the added breach of contract
claim.  Finally, we AFFIRM the trial court's award of attorney's
fees.


                            FOOTNOTES


Footnote 1:

     The theater is variously referred to in the pleadings on file
as the "Fourth Avenue Theater" and the "Fourth Avenue Theatre." 
This opinion uses the latter spelling, which appears to be both the
oldest and most consistently used. 


Footnote 2:

     The jury was asked, "Are the names, '4th Avenue Theatre,' '4th
Avenue Theater,' 'Fourth Avenue Theatre,' and 'Fourth Avenue
Theater,' trade names?"  It answered in the affirmative.


Footnote 3:

     See Western Pioneer, Inc. v. Harbor Enter., Inc., 818 P.2d
654, 656 n.3 (Alaska 1991).


Footnote 4:

     See Sauve v. Winfree, 907 P.2d 7, 9 (Alaska 1995).


Footnote 5:

     See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 6:

     See Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348
(Alaska 1987).


Footnote 7:

     See Aviation Assocs. Ltd. v. Temsco Helicopters, Inc., 881
P.2d 1127, 1130 n.4 (Alaska 1994).


Footnote 8:

     See Municipality of Anchorage v. Baugh Constr. & Eng'g Co.,
722 P.2d 919, 927 (Alaska 1986).


Footnote 9:

     See Stosh's v. Fairbanks North Star Borough, 12 P.3d 1180,
1183 (Alaska 2000).


Footnote 10:

     See id.; see also Buster v. Gale, 866 P.2d 837, 841 n.9
(Alaska 1994) (quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650
P.2d 375, 378-79 (Alaska 1982)).


Footnote 11:

     See City of Kodiak v. Parish, 986 P.2d 201, 202 (Alaska 1999).


Footnote 12:

     AS 45.50.471(b)(3).


Footnote 13:

     The Lanham Act states the federal rule in substantially
similar terms:

               (1) Any person who, on or in connection
with any goods or services, or any container for goods, uses in
commerce any word, term, name, symbol, or device, . . . which--
               (A) is likely to cause confusion, or to
cause mistake, or to deceive as to the affiliation, connection, or
association of such person with another person, or as to the
origin, sponsorship, or approval of his or her goods, services, or
commercial activities by another person . . . .

15 U.S.C. sec. 1125(a).


Footnote 14:

     "Common law liability for unfair competition (which includes
trademark infringement) is governed by local law.  Federal law,
however, serves as persuasive authority because, for many years, it
governed these areas almost exclusively and spawned a large body of
federal decisions.  As with federal law, the common law of
trademarks is a portion of the broader law of unfair competition." 
Pennsylvania State Univ. v. University Orthopedics, Ltd., 706 A.2d
863, 870 (Pa. Super. 1998) (quoting Goebel Brewing Co. v.
Esslingers, Inc., 95 A.2d 523, 525-26 (Pa. 1953)).  We note that,
unlike federal trademark infringement that provides national
protection, the legal rights protected by common law infringement
and unfair competition actions are limited to the territory in
which the use is established.  See Powder River Oil Co. v. Powder
River Petroleum Corp., 830 P.2d 403, 407-08 (Wyo. 1992).


Footnote 15:

     See 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair
Competition sec. 9:1 (4th ed. 2000).


Footnote 16:

     See id.


Footnote 17:

     "The major legal distinction between trademarks and trade
names is that trade names cannot be [federally] registered . . . ." 
Accuride Int'l, Inc. v. Accuride Corp., 871 F.2d 1531, 1534 (9th
Cir. 1989).  Federal registration is not an issue in this case.


Footnote 18:

     American Steel Foundries v. Robertson, 269 U.S. 372, 380
(1926) (citation omitted). 


Footnote 19:

     Younker v. Nationwide Mut. Ins. Co., 191 N.E.2d 145, 149 (Ohio
1963).


Footnote 20:

     See 1 McCarthy, supra note 15, sec. 9:1.


Footnote 21:

     See Accuride, 871 F.2d at 1535 (rejecting argument that trade
name infringement must be determined differently from  trademark
infringement).


Footnote 22:

     See Standard Oil Co. v. Standard Oil Co., 56 F.2d 973, 978
(10th Cir. 1932) ("[I]t is now well settled that the law of unfair
competition is not confined to cases of actual market
competition."). 


Footnote 23:

     See John Roberts Mfg. Co. v. University of Notre Dame Du Lac,
258 F.2d 256, 262 (7th Cir. 1958) (affirming ruling that use of
"University of Notre Dame" on class rings is infringement); Cornell
Univ. v. Messing Bakeries, Inc., 138 N.Y.S.2d 280, 282-83 (App.
Div. 1955), aff'd, 128 N.E.2d 421 (N.Y. 1955) (enjoining certain
uses of "Cornell" as trademark for bread).


Footnote 24:

     See Safeway Stores, Inc. v. Safeway Properties, Inc., 307 F.2d
495, 497-98 (2d Cir. 1962) (affirming preliminary injunction
against use of trademark "Safeway" as part of defendant's corporate
name, Safeway Properties); National Customer Eng'g, Inc. v.
Lockheed Martin Corp., 43 U.S.P.Q.2d 1036, 1040 (C.D. Cal. 1997)
(finding a likelihood of confusion between trademark "Mountain" and
trade name "MountainGate" of manufacturer with similar products).


Footnote 25:

     State v. O'Neill Investigations, Inc., 609 P.2d 520, 534
(Alaska 1980).


Footnote 26:

     AS 45.50.471(a)(3).


Footnote 27:

     2 McCarthy, supra note 15, sec. 15:1.


Footnote 28:

     See Railroad Salvage, Inc. v. Railroad Salvage, Inc., 561 F.
Supp. 1014, 1019 (D.R.I. 1983).


Footnote 29:

     See Metro Brokers, Inc. v. Tann, 815 F. Supp. 377, 381 (D.
Colo. 1993).


Footnote 30:

     Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768
(1992).


Footnote 31:

     See 2 McCarthy, supra note 15, sec. 11:11.


Footnote 32:

     See Sun Microsystems, Inc. v. SunRiver Corp., 36 U.S.P.Q.2d
1266, 1268-69 (N.D. Cal. 1995).


Footnote 33:

     See Stork Restaurant, Inc. v. Sahati, 166 F.2d 348, 355 (9th
Cir. 1948).


Footnote 34:

     See WGBH Educ. Found., Inc. v. Penthouse Int'l, Ltd., 453 F.
Supp. 1347, 1350 (S.D.N.Y. 1978), aff'd, 598 F.2d 610 (2d Cir.
1979).


Footnote 35:

     See 2 McCarthy, supra note 15, sec. 11:5.


Footnote 36:

     See Exxon Corp. v. Xoil Energy Resources, Inc., 552 F. Supp.
1008, 1014 (S.D.N.Y. 1981).


Footnote 37:

     See Polaroid Corp. v. Polaraid, Inc., 319 F.2d 830, 837 (7th
Cir. 1963).


Footnote 38:

     See Clorox Chemical Co. v. Chlorit Mfg. Corp., 25 F. Supp.
702, 705 (E.D.N.Y. 1938).


Footnote 39:

     See Stork Restaurant, 166 F.2d at 355 (noting greater degree
of protection given to fanciful marks than to names in common use);
2 McCarthy, supra note 15, sec. 11:6.


Footnote 40:

     Railroad Salvage, 561 F. Supp. at 1020.


Footnote 41:

     See Citibank, N.A. v. Citibanc Group, Inc., 724 F.2d 1540,
1545 (11th Cir. 1984) (noting that "Citibank" is suggestive of an
urban bank).


Footnote 42:

     See Orange Crush Co. v. California Crushed Fruit Co., 297 F.
892, 893 (D.C. Cir. 1924) (finding "Orange Crush" was suggestive
and not descriptive because a "person of average intelligence would
not understand, when buying an orange crush drink, that he was
getting a crushed orange").


Footnote 43:

     See Capitol Tie Rak, Inc. v. Tie Rack Stores, Inc., 150
U.S.P.Q. 357, 359 (N.D. Ill. 1966) (noting "Tie Rak" was
descriptive if selling tie racks but suggestive if selling ties).


Footnote 44:

     See 2 McCarthy, supra note 15, sec. 11:63.


Footnote 45:

     See id.


Footnote 46:

     See id. sec. 12:1.


Footnote 47:

     See id.


Footnote 48:

     See Discount Muffler Shop, Inc. v. Meineke Realty Corp., 535
F. Supp. 439, 446 (N.D. Ohio 1982).


Footnote 49:

     See Convenient Food Mart, Inc. v. 6-Twelve Convenient Mart,
Inc., 690 F. Supp. 1457, 1464 (D. Md. 1988), aff'd, 870 F.2d 654
(4th Cir. 1989).


Footnote 50:

     See Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d
75, 80-81 (7th Cir. 1977).


Footnote 51:

     See CES Publ'g Corp. v. St. Regis Publications, Inc., 531 F.2d
11, 13 (2d Cir. 1975) (noting that to permit exclusive trademark
rights in a generic mark "would grant the owner of the mark a
monopoly, since a competitor could not describe his goods as what
they are").


Footnote 52:

     See 2 McCarthy, supra note 15, sec. 11:64.


Footnote 53:

     See id. sec. 11:16.


Footnote 54:

     See Beer Nuts, Inc. v. Clover Club Foods Co., 711 F.2d 934,
942 (10th Cir. 1983) (affirming that "Beer Nuts" was descriptive of
salted nuts).


Footnote 55:

     See Franklin Knitting Mills, Inc. v. Fashionit Sweater Mills,
Inc., 297 F. 247, 248 (S.D.N.Y. 1923), aff'd, 4 F.2d 1018 (2d Cir.
1925) (concluding that "Fashionknit" was descriptive of fashionable
sweaters).


Footnote 56:

     See Skinner Mfg. Co. v. Kellogg Sales Co., 143 F.2d 895, 898
(8th Cir. 1944) (concluding that "Raisin-Bran" was descriptive of
raisin and bran breakfast cereal).


Footnote 57:

     See Two Pesos, 505 U.S. at 769.


Footnote 58:

     See Estate of P. D. Beckwith, Inc. v. Commissioner of Patents,
252 U.S. 538, 543-44 (1920) ("[T]he law would not secure to any
person the exclusive use of a trade-mark consisting merely of words
descriptive of the qualities, ingredients, or characteristics of an
article of trade; this for the reason that the function of a
trade-mark is to point distinctively, either by its own meaning or
by association, to the origin or ownership of the wares to which it
is applied, and words merely descriptive of qualities, ingredients,
or characteristics, when used alone, do not do this.  Other like
goods, equal to them in all respects, may be manufactured or dealt
in by others, who, with equal truth, may use, and must be left free
to use, the same language of description in placing their goods
before the public.").


Footnote 59:

     See 2 McCarthy, supra note 15, sec. 11:18.


Footnote 60:

     Bada Co. v. Montgomery Ward & Co., 426 F.2d 8, 11 (9th Cir.
1970). 


Footnote 61:

     See 2 McCarthy, supra note 15, sec. 14:1.


Footnote 62:

     See Alaska Northwest Publ'g Co. v. A. T. Publ'g Co., 319 F.
Supp. 963, 965 (D. Alaska 1970), rev'd on other grounds, 458 F.2d
387 (9th Cir. 1972) (finding "Alaska" as title of sporting magazine
about Alaska is geographically descriptive with no secondary
meaning: "Geographical names are non-exclusive when they are
descriptive of a locality or the origin of a product.  Thus, the
magazine title 'ALASKA,' named after the State of Alaska, is not
capable of exclusive appropriation by the plaintiff.").


Footnote 63:

     See In re BankAmerica Corp., 231 U.S.P.Q. 873, 875 (T.T.A.B.
1986) (deciding that "Bank of America" is geographically
descriptive and not inherently distinctive).


Footnote 64:

     See Boston Beer Co. v. Slesar Bros. Brewing Co., 9 F.3d 175,
181-83 (1st Cir. 1993) (concluding that "Boston" as name of beer
manufacturer with headquarters in Boston is geographically
descriptive with no secondary meaning).


Footnote 65:

     See Canal Co. v. Clark, 80 U.S. (13 Wall.) 311, 324 (1871)
("And it is obvious that the same reasons which forbid the
exclusive appropriation of generic names or of those merely
descriptive of the article manufactured and which can be employed
with truth by other manufacturers, apply with equal force to the
appropriation of geographical names, designating districts of
country.  Their nature is such that they cannot point to the origin
(personal origin) or ownership of the articles of trade to which
they may be applied.  They point only at the place of production,
not to the producer, and could they be appropriated exclusively,
the appropriation would result in mischievous monopolies."). 


Footnote 66:

     See Gucci v. Gucci Shops, Inc., 688 F. Supp. 916, 928
(S.D.N.Y. 1988) (resolving trademark dispute over use of Gucci
family name).


Footnote 67:

     See L. E. Waterman Co. v. Modern Pen Co., 235 U.S. 88, 94
(1914) (affirming protection of the personal name trademark
"Waterman" for pens).


Footnote 68:

     "The known multiplicity of similar personal names may make
consumers hesitant to assume a common source for products bearing
a particular name.  The name will therefore not function as a
trademark or trade name unless, through use, it has become accepted
by prospective purchasers as an indication of source or association
with a particular person."  Restatement (Third) of Unfair
Competition sec. 14, cmt. e (1995); see also 2 McCarthy, supra note
15, sec.sec. 13:1-:3.


Footnote 69:

     See id. sec. 11:27.


Footnote 70:

     See Association of Coop. Members, Inc. v. Farmland Indus.,
Inc., 684 F.2d 1134, 1140 (5th Cir. 1982) ("The whole, in trademark
law, is often greater than the sum of its parts.  Common words in
which no one may acquire a trademark because they are descriptive
or generic may, when used in combination, become a valid
trademark.").


Footnote 71:

     See Estate of P. D. Beckwith, 252 U.S. at 545-46. 


Footnote 72:

     "It is perfectly acceptable to separate a compound mark and
discuss the implications of each part thereof with respect to the
question of descriptiveness provided that the ultimate
determination is made on the basis of the mark in its entirety." 
In re Hester Indus., Inc., 230 U.S.P.Q. 797, 798 n.5 (T.T.A.B.
1986).


Footnote 73:

     59 F.3d 902, 912-13 (9th Cir. 1995). 


Footnote 74:

     Id. at 909-12.


Footnote 75:

     See id. at 912. 


Footnote 76:

     See id. at 912-13.


Footnote 77:

     See id. at 913; see also California Cooler, Inc. v. Loretto
Winery, Ltd., 774 F.2d 1451, 1455 (9th Cir. 1985) ("California
Cooler . . . is a composite term, and its validity is not judged by
an examination of its parts.  Rather, the validity of a trademark
is to be determined by viewing the trademark as a whole. . . . 
Thus, the composite may become a distinguishing mark even though
its components individually cannot." (Citations omitted.)). 


Footnote 78:

     See Bank of Texas v. Commerce Southwest, Inc., 741 F.2d 785,
787 (5th Cir. 1984) (finding that name "Bank of Texas," which
combined the generic term "bank" with the geographical term
"Texas," was not inherently distinctive but could be protected as
a trade name if it had acquired secondary meaning). 


Footnote 79:

     See Two Pesos, 505 U.S. at 769 (citations omitted). 


Footnote 80:

     Charcoal Steak House, Inc. v. Staley, 139 S.E.2d 185, 187
(N.C. 1964) (emphasis in original).


Footnote 81:

     See 2 McCarthy, supra note 15, sec. 15:5.


Footnote 82:

     See Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 821
(9th Cir. 1980); Coca-Cola Co. v. Seven-Up Co., 497 F.2d 1351,
1354-55 (C.C.P.A. 1974) (secondary meaning is created second in
time but becomes of "primary" importance in identifying source).


Footnote 83:

     There is a territorial aspect of trade name protection that
can be factored into a secondary meaning analysis.  See Lerner
Stores Corp. v. Lerner, 162 F.2d 160, 162-63 (9th Cir. 1947)
(discussing whether appellant established a "substantial nucleus of
business" in the city where appellant sought to enjoin appellees
use of trade name); First Nat'l Bank v. First Wyo. Savs. & Loan
Assoc., 592 P.2d 697, 702-04 (Wyo. 1979) (affirming injunctive
relief granted within county, but not statewide, based on area in
which plaintiff had established secondary meaning); Junior Food
Stores, Inc. v. Jr. Food Stores, Inc., 226 So. 2d 393, 396-97 (Fla.
1969).  For example, a theater in Juneau may be able to use "Fourth
Avenue Theatre" without infringing Iditarod's trade name, if
Iditarod could not establish that its secondary meaning -- and thus
any likelihood of confusion -- extends to the Juneau area.  Because
the parties occupy neighboring businesses on the same street and in
the same city, there is no need to determine the territorial extent
of secondary meaning or trade name protection in this case.


Footnote 84:

     See American Heritage Life Ins. Co. v. Heritage Life Ins. Co.,
494 F.2d 3, 12 (5th Cir. 1974).


Footnote 85:

     See 2 McCarthy, supra note 15, sec. 11:26.


Footnote 86:

     See Echo Travel, Inc. v. Travel Assocs., Inc., 870 F.2d 1264,
1267 (7th Cir. 1989).


Footnote 87:

     See id.


Footnote 88:

     See Thompson Medical Co. v. Pfizer Inc., 753 F.2d 208, 217 (2d
Cir. 1985).


Footnote 89:

     Id. (internal quotations and citation omitted).


Footnote 90:

     See 2 McCarthy, supra note 15, sec. 15:45; Restatement (Third)
of
Unfair Competition sec. 13, cmt. e (1995).


Footnote 91:

     See, e.g., Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d
162, 168 (2d Cir. 1991) (finding "substantial segment" sufficient
for secondary meaning); Levi Strauss, 778 F.2d at 1358.


Footnote 92:

     See First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378,
1383 (9th Cir. 1987) ("Whether a particular trade dress has
acquired secondary meaning is a question of fact subject to the
clearly erroneous standard of review.").


Footnote 93:

     See Norsan Prods., Inc. v. R. F. Schuele Corp., 286 F. Supp.
12, 14 (E.D. Wis. 1968).


Footnote 94:

     See Food Fair Stores, Inc. v. Lakeland Grocery Corp., 301 F.2d
156, 161 (4th Cir. 1962) (noting secondary meaning proven in part
by food wholesalers and stock investors knowing of the association
between trade name and company); Fund of Funds, Ltd. v. First Am.
Fund of Funds Inc., 274 F. Supp. 517, 524 (S.D.N.Y. 1967) (finding
secondary meaning proven in part by mention of trade name in
association with company in governmental publication read by
professional investors).


Footnote 95:

     Iditarod also provided supplier invoices as evidence of
secondary meaning.  In most cases, the relevant buyer class
consists of actual or potential consumers, see 2 McCarthy, supra
note 15, sec. 15:46, and the state of mind of persons who are not
in
this buyer class -- like a business's suppliers -- is often deemed
irrelevant.  See Invisible, Inc. v. National Broad. Co., 212
U.S.P.Q. 576, 577-78 (C.D. Cal. 1980); Astatic Corp. v. American
Electronics, Inc., 201 U.S.P.Q. 411, 421 (N.D. Ohio 1978).  A
supplier's use of a business's trade name rather than a corporate
name may be due to nothing more than the business's stated
preference.  Thus, Iditarod's evidence of supplier invoices using
the "Fourth Avenue Theatre" trade name adds little, if any, support
to the jury finding.


Footnote 96:

     See 2 McCarthy, supra note 15, sec. 16:4.    


Footnote 97:

     See id. sec. 16:34.


Footnote 98:

     Id.; see also PaperCutter, Inc. v. Fay's Drug Co., 900 F.2d
558, 564 (2d Cir. 1990); Restatement (Third) of Unfair Competition,
sec. 19, Reporters' Note, cmt. b (1995) ("The party seeking relief
ordinarily is required to establish the existence of secondary
meaning at the time of commencement of use by the other party.").


Footnote 99:

     See 4 McCarthy, supra note 15, sec. 24:13.   


Footnote 100:

     Continental Motors Corp. v. Continental Aviation Corp., 375
F.2d 857, 861 (5th Cir. 1967).


Footnote 101:

      See Sweetarts v. Sunline, Inc., 380 F.2d 923, 927 (8th Cir.
1967) ("Plaintiff has the right to make and keep its own reputation
without entrusting it to others over whom it cannot exercise any
control.  Some may treat it tenderly, nurture and enhance it, while
others during the course of time may tarnish or degrade it; and the
public is confused and suffers along with the infringed."); James
Burrough, Ltd. v. Ferrara, 169 N.Y.S.2d 93, 96 (Sup. 1957) ("It is
not to be disputed that plaintiff is not required to put its
reputation in defendant's hands, no matter how capable those hands
may be."). 


Footnote 102:

     See James Burrough, Ltd. v. Sign of Beefeater, Inc., 540 F.2d
266, 274 (7th Cir. 1976) ("What is infringed is the right of the
public to be free of confusion and the synonymous right of a
trademark owner to control his product's reputation."). 


Footnote 103:

     This reason is not decisive because it is offset by the desire
to prevent giving the senior user a monopoly over the name.  See S.
C. Johnson & Son, Inc. v. Johnson, 175 F.2d 176, 180 (2d Cir. 1949)
(stating that the court would not allow plaintiff to "reach a
choking hand into a market not its own," unless there was a very
strong showing of probable expansion or the plaintiff's mark was
very strong). 


Footnote 104:

     Stork Restaurant v. Sahati, 166 F.2d 348, 357 (9th Cir. 1948).


Footnote 105:

     See 4 McCarthy, supra note 15, sec.sec. 24:5-:6.


Footnote 106:

     Compare Yale Electric Corp. v. Robertson, 26 F.2d 972, 974 (2d
Cir. 1928) (finding likely confusion between Yale locks and Yale
flashlights), Aunt Jemima Mills Co. v. Rigney & Co., 247 F. 407,
409-10 (2d Cir. 1917) (finding likely confusion between Aunt Jemima
pancake syrup and Aunt Jemima pancake flour), and Time, Inc. v.
Life Television Corp., 123 F. Supp. 470, 475 (D. Minn. 1954)
(finding likely confusion between Life magazine and Life television
sets because Life magazine endorsed various products), with Time,
Inc. v. T.I.M.E., Inc., 123 F. Supp. 446, 456-57 (S.D. Cal. 1954)
(finding no likely confusion between Time magazine and T.I.M.E.
trucking service). 


Footnote 107:

     Fleischmann Distilling Corp. v. Maier Brewing Co., 314 F.2d
149, 159 (9th Cir. 1963); accord AMF Inc. v. Sleekcraft Boats, 599
F.2d 341, 348 (9th Cir. 1979).


Footnote 108:

     See McLean v. Fleming, 96 U.S. 245, 255 (1877) ("Where the
similarity is sufficient to convey a false impression to the public
mind, and is of a character to mislead and deceive the ordinary
purchaser in the exercise of ordinary care and caution in such
matters, it is sufficient to give the injured party a right to
redress . . . ."). 


Footnote 109:

     See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769
(1992) ("It is, of course, also undisputed that liability under
[the Lanham Act] requires proof of the likelihood of confusion."). 


Footnote 110:

     See 3 McCarthy, supra note 15, sec. 23:1, n.1, & n.7.


Footnote 111:

     See id. sec. 23:2.


Footnote 112:

     See, e.g., Exxon Corp. v. Texas Motor Exch., Inc., 628 F.2d
500, 507 (5th Cir. 1980) (finding fifteen percent level of
confusion is "strong evidence" of likely confusion); Grotrian,
Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 365 F.
Supp. 707, 716 (S.D.N.Y. 1973) (stating that survey evidence,
including a survey showing eight and one-half percent confusion,
was "strong evidence" of a likelihood of confusion).


Footnote 113:

     See American Steel Foundries v. Robertson, 269 U.S. 372, 384
(1926); Elvis Presley Enters. Inc. v. Capece, 141 F.3d 188, 193
(5th Cir. 1998) ("Likelihood of confusion is synonymous with a
probability of confusion, which is more than a mere possibility of
confusion.").


Footnote 114:

     See 3 McCarthy, supra note 15, sec. 23:5.


Footnote 115:

     AS 45.50.471(b)(3); 15 U.S.C. sec. 1125(a); see Champions Golf
Club, Inc. v. Champions Golf Club, Inc., 78 F.3d 1111, 1121 (6th
Cir. 1996) ("The relevant question is whether a golfer, albeit
sophisticated, would likely be confused about affiliation between
the two clubs [both named 'Champions'].").


Footnote 116:

     See Electronic Design & Sales, Inc. v. Electronic Data Sys.
Corp., 954 F.2d 713, 716 (Fed. Cir. 1992) ("[T]he inquiry generally
will turn on whether actual or potential 'purchasers' are
confused.").


Footnote 117:

     See Yarmuth-Dion, Inc. v. D'ion Furs, Inc., 835 F.2d 990, 995
(2d Cir. 1987) (concluding that the district court erred by
considering likelihood of confusion among only the junior user's
customers). 


Footnote 118:

     3 McCarthy, supra note 15, sec. 23:5; see also Sleekcraft, 599
F.2d at 353. 


Footnote 119:

     Accuride Int'l, Inc. v. Accuride Corp., 871 F.2d 1531, 1536
(9th Cir. 1989).


Footnote 120:

     See 3 McCarthy, supra note 15, sec. 23:2.1; see also Tisch
Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 612 (7th Cir.
1965) (noting importance of evidence of actual confusion); Calvin
Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 504 (8th
Cir. 1987) ("Visual inspections by the court are permissible as an
aid in determining likely confusion.  However, caution should be
exercised to avoid putting too much stock in a subjective
inspection done in-chambers that is devoid of market
characteristics." (Citation omitted.)). 


Footnote 121:

     See Tisch Hotels, 350 F.2d at 612.


Footnote 122:

     World Carpets, Inc. v. Dick Littrell's New World Carpets, 438
F.2d 482, 489 (5th Cir. 1971). 


Footnote 123:

     Restatement of Torts sec.sec. 729 & 731 (1938).


Footnote 124:

     Sleekcraft, 599 F.2d at 348-49.


Footnote 125:

     John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 973
(11th Cir. 1983) (citations omitted); accord Transgo, Inc. v. Ajac
Transmission Parts Corp., 768 F.2d 1001, 1013-14 (9th Cir. 1985).


Footnote 126:

     We note that the trade name "Fourth Avenue Trolley Tours"
would have a different analysis and may have resulted in a finding
of no likelihood of confusion because that name lacked reference to
the theater.  However, this name was not contested by Iditarod and
was not decided at trial. 


Footnote 127:

     See supra Part IV.B.5.


Footnote 128:

     See Levi Strauss, 632 F.2d at 821; Sleekcraft, 599 F.2d at 349
n.12.


Footnote 129:

     See Sleekcraft, 599 F.2d at 350.


Footnote 130:

     See id. at 351.


Footnote 131:

     See, e.g., Bellbrook Dairies, Inc. v. Hawthorn-Mellody Farms
Dairy, Inc., 253 F.2d 431, 432 (C.C.P.A. 1958) ("[O]ne may not
appropriate the entire mark of another and avoid a likelihood of
confusion by the addition thereto of descriptive or otherwise
subordinate matter."); American Express Co. v. American Express
Limousine Serv. Ltd., 772 F. Supp. 729, 733 (E.D.N.Y. 1991) 
(finding that the addition of "Limousine Service" to the American
Express mark actually increased a likelihood of confusion).


Footnote 132:

     The state legislature has recently amended AS 10.35.020 and
.040.  See ch. 50, sec.sec. 17-19, SLA 1999; ch. 115, sec. 5, SLA
2000.
Former AS 10.35.040 stated the rule for registering a business
name:

               A person conducting a business may
register its name if the name is not the same as, or deceptively
similar to, the name of a domestic corporation or a foreign
corporation authorized to transact business in the state, or a name
reserved or registered under this title.  Registration of the name
gives the exclusive right to the use of the name and the person who
has registered the name may enjoin the use of the same name or a
deceptively similar name and has a cause of action for damages
against anyone who uses the same name or a deceptively similar
name.


Footnote 133:

     Former AS 10.35.020 stated the rule for reserving a name for
a new business:

               Reservation of a business name is made by
filing an application with the commissioner.  Upon finding that the
name is available for business use, the commissioner shall reserve
it for the exclusive use of the applicant for a period of 120 days. 
A name is not available which is the same as, or deceptively
similar to, the name of a domestic corporation or a foreign
corporation authorized to transact business in the state, or a name
reserved or registered under this title or gives the impression
that the business is incorporated.


Footnote 134:

     Former AS 10.35.040 (emphasis added).


Footnote 135:

     The Aldermans did not attempt to reserve the name under AS
10.35.020.  On their registration form, the Aldermans checked the
box to register a business name; they did not check the box to
reserve a name. 


Footnote 136:

     See Romann v. State, Dep't of Transp. & Pub. Facilities, 991
P.2d 186, 190 (Alaska 1999).


Footnote 137:

     State v. Alex, 646 P.2d 203, 208-09 n.4 (Alaska 1982) (quoting
United States v. United States Steel Corp., 482 F.2d 439, 444 (7th
Cir. 1973)).

 


Footnote 138:

     See 1 McCarthy, supra note 15, sec. 9:8; see, e.g., MacPhail
v.
Stevens, 586 P.2d 1339, 1341 (Colo. App. 1978) (holding that
compliance with registration statute did not abrogate common law
and statutory trademark law).


Footnote 139:

     Powder River Oil Co. v. Powder River Petroleum Corp., 830 P.2d
403, 407 (Wyo. 1992). 


Footnote 140:

     See Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348
(Alaska 1987).


Footnote 141:

     Alaska R. Civ. P. 15 provides:

               (a) Amendments.  A party may amend the
party's pleading once as a matter of course at any time before a
responsive pleading is served or, if the pleading is one to which
no responsive pleading is permitted and the action has not been
placed upon the trial calendar, the party may so amend it at any
time within 20 days after it is served.  Otherwise a party may
amend the party's pleading only by leave of court or by written
consent of the adverse party;  and leave shall be freely given when
justice so requires. . . . 

               (b) Amendments to Conform to the
Evidence.  When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings.  Such
amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment;  but failure
so to amend does not affect the result of the trial of these
issues.  If evidence is objected to at the trial on the ground that
it is not within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so freely when the
presentation of the merits of the action will be subserved thereby
and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice the party in maintaining
the party's action or defense upon the merits.  The court may grant
a continuance to enable the objecting party to meet such evidence.


Footnote 142:

     742 P.2d 1346, 1349-50 (Alaska 1987).


Footnote 143:

     6A Charles Alan Wright et al., Federal Practice and Procedure
sec. 1493 (2d ed. 1990).


Footnote 144:

     See id., sec. 1488.


Footnote 145:

     See Betz, 742 P.2d at 1348-50; 6A Wright et al., supra note
143, sec. 1493.


Footnote 146:

     Betz, 742 P.2d at 1348 (quoting Shooshanian v. Wagner, 672
P.2d 455, 458 (Alaska 1983)).


Footnote 147:

     See id. (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).


Footnote 148:

     See id.


Footnote 149:

     Under certain circumstances, a party denied the opportunity to
amend the pleadings to conform to the evidence may bring a separate
action to seek relief.  See Hake v. Gunter, 824 F.2d 610, 616-17
(8th Cir. 1987).


Footnote 150:

     See supra note 141.


Footnote 151:

     See 6A Wright et al., supra note 143, sec. 1491.


Footnote 152:

     See id. sec. 1493.


Footnote 153:

     Id. (footnote omitted).


Footnote 154:

     See id.


Footnote 155:

     Iditarod incorrectly counts forty-three days between August
26, the date of the trial court's denial of Iditarod's first motion
for fees, and November 4, the date Iditarod's corrected motion was
signed.  The actual number of days is seventy.  


Footnote 156:

     Alaska R. Civ. P. 82(c).


Footnote 157:

     Id.  This version of Rule 82(c) was adopted in 1995.


Footnote 158:

     See T & G Aviation, Inc. v. Footh, 792 P.2d 671, 672 (Alaska
1990).


Footnote 159:

     See id.


Footnote 160:

     See id. (Matthews, C.J., dissenting).


Footnote 161:

     Black's Law Dictionary 1179 (6th ed. 1990).