Eugene bar accuses Kennewick business of stealing its name

Mike Miller recalls being behind the wheel when a Ciara song came on — “Level Up.”

For Miller, a Tri-City restaurateur, the words struck a chord.

“Level Up” is a common term in the gaming community. Miller and a business partner were preparing to open a bar and arcade in a second-floor spot in Kennewick above Porter’s Real Barbecue.

It needed a name.

“Level Up” just fit, said Miller, who is also a partner in Proof Gastropub in Kennewick and Stick + Stone Wood-Fired Pizza in Richland.

He announced his plans in January. Then, Miller and partner Gary Grant opened Level Up Bar Arcade a few months later, at 1022 N. Columbia Center Blvd., Ste. 210, near Proof..

But Miller wasn’t the only entrepreneur who thought it would be a good name for an arcade bar.

Level Up Arcade opened in 2012 near the University of Oregon in Eugene.

This week the Eugene business sued the Kennewick business for trademark infringement.

The Eugene company applied for a trademark in 2017. Limited rights to the name were approved in March.

The Eugene company sent the Kennewick operators a cease and desist letter in April and sued this week in U.S. District Court for Eastern Washington when the issue remained unresolved.

The Eugene company’s trademark gives it the exclusive use of “Level Up” for non-casino amusement arcades in Oregon, Washington, Idaho and Northern California dating to its original 2017 application.

Miller said he would consult with an attorney about a response after he receives a copy of the lawsuit.

‘Level Up’ name

The Kennewick bar and arcade is one of about two dozen businesses that use “Level Up” in their name, according to the Washington Secretary of State’s corporations division.

It appears to be the only one focused on entertainment.

The Eugene and Kennewick businesses have much in common.

Both offer full bars and arcade games. Both serve families during the day and become 21-and-over locations later in the evening.

But there are differences. Eugene has pool tables and serves bar food such as french fries.

Kennewick does not serve food. Customers may bring in food or have it delivered. The lawsuit mistakenly claims the Kennewick business includes an on-site restaurant.

In its suit, the Eugene company said it received phone calls and Facebook messages from consumers confused by the nearly identical names and businesses.

It does not address the Kennewick business on its Facebook page, @LevelUpArcade.

“Plaintiff has used its mark Level Up extensively from its location in Eugene, Oregon, and its goodwill extends to many other locations, including into Washington, and particularly Kennewick,” it said.

The Eugene business is seeking damages, attorney fees and to have the Kennewick business stop using the Level Up name.

It is represented by local counsel Lee & Hayes PC in Spokane and by IP counsel Klarquist Sparkman LLP in Portland.

This story was originally published August 21, 2019 at 12:37 PM.