Out to own 'The Last Best Place'
Missoula writer William Kittredge remembers coming up with the phrase "The Last Best Place" while drinking with friends at Chico Hot Springs back in 1988. The phrase became the title of a well-known anthology of Montana prose and poetry edited by Kittredge and fellow writer Annick Smith. David E. Lipson, a Las Vegas businessman and owner of the Resort at Paws Up, is attempting to trademark the phrase.
Photo by MICHAEL GALLACHER/Missoulian

The owner of Resort at Paws Up has applied to trademark Montana's famous phrase - angering Missoula author William Kittredge, the man who coined the words

David E. Lipson, a Las Vegas businessman and owner of the Resort at Paws Up, has applied for eight trademarks for exclusive use of a phrase that is close to the heart of many Montanans: "The Last Best Place."

Lipson's applications, which would cover about 100 commercial uses of the phrase, are in the final phase before registration, according to records from the U.S. Patent and Trademark Office.

If the applications become registered trademarks, Lipson could significantly inhibit use of a phrase that Montana Arts Council director Arnie Fishbaugh described as intrinsic to the state's identity and almost synonymous with "Big Sky Country."

"It means Montana," Fishbaugh said.

The phrase first appeared in 1988 as the title of an anthology of Montana writing, co-edited by Missoula writers William Kittredge and Annick Smith.

Kittredge, who coined the phrase, called the trademark applications offensive.

"I'm vehemently opposed to it," Kittredge said.

Lipson declined to speak with the Missoulian about the trademark applications.

Last month, Lipson drew attention from the Missoula City-County Health Department when his Blackfoot Valley resort opened despite lacking necessary business licenses. The Health Department has ordered the resort to close, yet Paws Up won't shut its doors.

Lipson said he has no choice but to stay open: If Paws Up closes, it may never reopen. The primary obstacle to the resort's business license is an unapproved water supply.

Lipson is a merchant banker with more than 20 companies registered to one street address in Las Vegas: 3993 Howard Hughes Parkway. He is also involved in a legal battle with a Montana construction company over work done at Paws Up and, in the 1990s, was found liable for securities fraud for insider trading in a case involving Supercuts. He had been chief executive officer of the nationwide chain of discount-haircutting salons.

In 2002, the SEC estimated Lipson's net worth at more than $100 million, according to court records.

It is clear from Trademark Office documents and the Paws Up Web site and other advertising material that Lipson intends to gain sole rights to "The Last Best Place" phrase for use in the resort's advertisements, promotional brochures and for other commercial ventures.

Lipson's applications would give him claim to "The Last Best Place" for travel, lodging and food service, as well as for use with a wide array of retail and manufactured items including furniture, clothing, cookware, crockery and even lingerie, according to the Trademark Office.

The applications themselves were made under the name of a company called Last Best Beef LLC. According to the Nevada secretary of state's office, Last Best Beef is owned by Lipson through another one of Lipson's Nevada companies, DEL Investments Corp. (DEL stands for David E. Lipson.)

Acquiring a registered trademark makes good business sense, said trademark lawyer Shane Vannatta of the Missoula law firm Worden Thane PC. The practice of issuing a trademark is meant to avoid confusion between the products or services of one party and those of others.

This isn't the first time that common images, phrases or geographic names have sparked trademark conflicts and debates in Montana.

Trademark disputes have grown more common over the past decade as local commerce has spilled over state lines and run up against regional or national companies that use similar names or symbols for products and services, Vannatta said.

In the early 1990s, a French designer named Claude Montana made an unsuccessful claim to exclusive rights to the state's name. Trademark law generally holds that surnames or geographical names cannot be trademarked.

A few years later, the Wyoming secretary of state tangled with the U.S. Postal Service over use of a silhouette of a bucking horse and a hat-waving cowboy to illustrate a Montana stamp. Wyoming has registered the image since the 1970s and has used the symbol for nearly a century.

On May 20, a large Missouri brewer and distributor named the David Sherman Corp. sent a complaint letter to Yellowstone Beer Co. of West Yellowstone, asking it to stop using the word Yellowstone.

Trademark rights arise from use. Generally, the first to use a mark or phrase has primary rights to it.

Federal registration is not required to establish rights in a mark, but the owner of a federal registration is presumed to be the owner of the trademark for the goods and services specified in the registration and is entitled to use the mark nationwide.

But one trademark does not cover all commercial uses of a word, phrase or mark. The trademark office lists 42 classes of goods and services that cover every conceivable service or product, Vannatta said.

Anyone who can prove prior use of a trademark can prevail in a conflict with the owner of a registration, but the challenge can easily cost $50,000 to $70,000, Vannatta said.

Once an application for a registration has been filed, examined and approved, it is published in the TM Official Gazette, a weekly publication of the Trademark Office available on the Internet.

The application then is subject to a comment period - known as the "opposition period" - during which any party believing they may be damaged by the registration of the trademark can file a protest. An opposition is similar to a formal proceeding in federal court, but is held before the Trademark Trial and Appeal Board, which resolves the protest.

Once the opposition is resolved or if none is filed and the trademark is in use, the Trademark Office will issue a registration certificate about three months after the close of the opposition period.

If the mark was published based on an applicant's intent to use it, the Trademark Office will allow the applicant to put the process on hold until the trademark is put to use.

Lipson's first three applications to trademark "The Last Best Place" were filed on Aug. 13, 2001, according to the Trademark Office.

The applications covered the use of the phrase in relation to meats, including beef, as well as clothing, pots, plates and bowls.

On Jan. 4, 2002, Lipson filed two more applications for use of the phrase in hotels and restaurants, as well as with jewelry, sheets and household linens and more clothing. On July 26, 2002, he filed a sixth application.

Finally, on Aug. 6, 2004, Lipson filed his last two trademark applications - these for real estate services, as well as for gifts, food products, souvenirs, novelty items and paper goods, according to the Trademark Office.

Another two trademarks already owned by Lipson give him use of "The Last Best Place" for catalogs. Those two trademark applications were filed and registered in 1992 by an Ohio clothes company that was later purchased by San Diego-based women's apparel maker Monterey Bay Clothing Co.

Monterey Bay published several catalogs in 2002 and 2003 under that name and, for a short time, objected to Lipson's early trademark applications. Those objections were later dropped because the catalog didn't generate many sales, said Debbie Laspisa, a spokeswoman for the company. Those are the only two trademarks registered for "The Last Best Place."

All eight of Lipson's trademark applications are in or about to be in the formal opposition period. Some entered the opposition period as late as May 3, May 24 and July 5 of this year.

Back in 1988, the writers Kittredge and Smith had nearly completed a massive anthology of Montana prose and poetry and were desperate for a title, Kittredge said.

That year, the anthology's editorial committee went to Chico Hot Springs in the Paradise Valley for some heavy duty literary brainstorming, he said.

At Chico, Kittredge was pouring a drink and musing about a line from a Richard Hugo poem called "Degrees of Gray in Philipsburg." The line includes the phrase, "the last good kiss." He was also thinking about the name of a western Montana mine called the Last Best Hope.

It all came together as the "Last Best Place."

"I'm the one who thought it up. I know exactly when I did it," Kittredge said.

In the years since the line appeared as the title of the anthology, it has almost become a household term in Montana, said former Gov. Ted Schwinden.

Schwinden used a similar phrase in his 1984 re-election campaign and recalled seeing the book and loving the title.

"It was neat. I was a little envious. It would have fit better on our banners," Schwinden said.

As of July, a wide variety of Montana companies and public entities employed the phrase "The Last Best Place."

Montana's official Web site uses the phrase liberally, as does the small town of Lavina, near Billings. Resorts employing the phrase in promotional materials include the Ramblin' River Ranch near Columbia Falls and Dome Mountain Ranch near Emigrant.

Realtors who use "The Last Best Place" include Bozeman-based Christies Great Estates of Montana and Biggerstaff Real Estate and Development Co. of Big Sky.

But that's not even close to an all-inclusive list. The phrase is in use by all manner of Montana companies ranging from restaurants and retailers to marketers and universities.

Still others employ variations on the phrase. Between Clearwater Junction and Seeley Lake is a cemetery called "The Best Last Place." In East Missoula is a business called "The Last Best Space Mini-storage."

How does Kittredge feel about the explosion of "best places"? It's gratifying, he said.

"I've seen it hundreds of places," Kittredge said. "That's fine."

Reporter Robert Struckman can be reached 523-5262 or rstruckman@missoulian.com

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