## Facts

- Iditarod Properties, Inc. owned and restored the historic Fourth Avenue Theatre in Anchorage and used “Fourth Avenue Theatre” in advertising and for related onsite businesses and services.
- The Aldermans operated a trolley-tour business and, after their relationship with Iditarod deteriorated, registered and began using the name “Fourth Avenue Theater Trolley Tours.”
- In 1998 Iditarod began operating its own trolley tours using “Fourth Avenue Theatre,” resulting in two trolley operations using highly similar names from the same location.
- Iditarod sued for trade name infringement and breach of a ticket-booth lease; the jury found “Fourth Avenue Theatre” (and spelling variants) was a trade name.
- Evidence showed the public associated “Fourth Avenue Theatre” with Iditarod’s enterprise through promotion, publicity, and customer use; both sides acknowledged incidents of actual confusion.
- After the close of evidence, the trial court allowed Iditarod to amend its pleadings to expand its recovery theory and later awarded attorney’s fees.

## Issues

1. Whether “Fourth Avenue Theatre” was protectable as a trade name through secondary meaning before the Aldermans began using “Fourth Avenue Theater Trolley Tours.”
2. Whether the Aldermans’ use created a likelihood of confusion and infringed Iditarod’s trade name, including whether direct competition at the time of first use was required.
3. Whether Alaska’s business-name registration statute, AS 10.35.040, granted the Aldermans exclusive rights defeating Iditarod’s trade-name claim.
4. Whether permitting amendment of the pleadings after the close of evidence was an abuse of discretion.
5. Whether the attorney’s fee award was proper.

## Decision

- The Alaska Supreme Court affirmed the judgment for Iditarod on trade name protectability, infringement, statutory interpretation, and attorney’s fees.
- The court held sufficient evidence supported the jury’s finding that “Fourth Avenue Theatre” had acquired secondary meaning before the Aldermans’ challenged use.
- The court upheld the finding of infringement because the similar names and shared location supported a likelihood of confusion, confirmed by actual confusion.
- The court held AS 10.35.040 did not confer substantive exclusive trademark-like rights and did not displace prior common-law trade-name rights.
- The court reversed only the order allowing amendment of the pleadings after the close of evidence as an abuse of discretion due to unfair prejudice.

## Legal Principles

- A descriptive trade name is protectable upon proof of secondary meaning—public association of the name with a particular source rather than merely the place or thing described.
- Trade name infringement turns on likelihood of confusion as to source, sponsorship, or affiliation; protection is not limited to identical goods or services existing at the moment of the defendant’s adoption.
- Evidence of actual confusion is strongly probative of likelihood of confusion.
- Business-name registration under AS 10.35.040 functions as a registration/notice scheme and does not grant exclusive substantive rights that override prior common-law trade-name rights.
- Post-evidence amendments under Alaska Civil Rule 15 may be denied when they unfairly prejudice the opposing party by introducing a new theory without a fair opportunity to defend.

## Conclusion

The court largely upheld a jury verdict protecting “Fourth Avenue Theatre” as a trade name based on secondary meaning and finding infringement from a confusingly similar trolley-tour name, while rejecting the claim that business-name registration created exclusive rights; it reversed only because a late pleading amendment unfairly prejudiced the defendants.


Alderman v. Iditarod Props., Inc., 32 P.3d 373 (Alaska 2001)