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About the National Park Service – Yosemite Lawsuit

I’ve had several requests to look into the widely-reported trademark dispute related to the National Park Service, and Yosemite National Park in particular. Here are the facts as I understand them.

Delaware North had the concession contract to several Yosemite sites, including the the Ahwahnee hotel, between 1993 and 2015. The 15-year contract expired in 2008, but was extended several times. Eventually, however, the National Park Service awarded the concession to a different company.

Delaware North claims that when it won the contract in 1993, it was required to purchase certain assets from the previous concessionaire, the Curry Company, for $61.5 million. That’s about $115 million in today’s dollars. These assets included certain slogans and names, including The Ahwahnee, Curry Village, and Badger Pass.

This 1993 contract – again, as alleged by Delaware North – also provided language to the effect that any subsequent concessionaire would have to buy those assets, presumably at fair market value.

Meanwhile, at various points in this process, several parties, including Delaware North, applied for and received trademark registrations from the U.S. Patent and Trademark Office for these brand names. At no point did the National Park Service file any formal oppositions regarding these applications or registrations.

It doesn’t seem to be in dispute that most or all of these names long predate Delaware North’s position as the park’s concessionaire.

Delaware North filed a lawsuit, and the National Park Service has responded by announcing that they will be changing the names of these landmarks as of March 1, 2016 (the date the new concession contract begins.)

Delaware North has amended its lawsuit, stating:

NPS announced these name changes for two reasons: As an effort to reduce the value of DNCY’s trademarks and . . . to create public pressure on DNCY to accept less than fair value for its intellectual property in order to avoid reputational harm and the loss of future concession contract bids.

Who Really Owns These Names?

Broadly speaking, trademarks are inseparable from the goodwill associated with the mark and the related goods and services.

OK, that sounds like a bunch of legalese, doesn’t it? Let’s try to break that down.

Trademarks are valuable only in relation to how consumers feel about the products and services. A name like The Ahwahnee has commercial value because people have been going there for years, and it represents part of one of our nation’s most beloved natural landmarks. The name has a different resonance than, say, the latitude and longitude associated with the location of the hotel, or its GPS coordinates.

Think of it this way: which has more value to you – the domain name Google.com or the IP address To a computer, they’re the same thing. But not to a human consumer.

All of which is to say that the public reaction to this story is more than reasonable. People feel like the The Ahwahnee and other names “should” belong to the National Park Services – and, therefore, to all of the citizens of the U.S. If you’ve stayed at that hotel, and had a good experience, you probably told your friends about the great hotel you visited when you went to Yosemite National Park…not about how you went to a great venue that was administered by the fabulous concessionaire Delaware North.

Based on that logic, it seems like the National Park Service should own these names and the trademarks associated with them – not Delaware North or the new concessionaire.

I agree.

And a previous court in a similar case, relating to New York’s famous “Tavern on the Green” restaurant, came to the same conclusion. You can read that ruling here.

Over on the reliably excellent Duets Blog, Tim Sitzmann noted that Congress has sort of stepped in to prevent these types of issues in the future:

 Fortunately for the Park Service, Congress has its back with a new law that took effect last December. The law is codified at 54 U.S.C. § 302106 and provides:

“Notwithstanding section 43(c) of the Act of July 5, 1946 (known as the Trademark Act of 1946) (15 U.S.C. 1125(c)), buildings and structures on or eligible for inclusion on the National Register (either individually or as part of a historic district), or designated as an individual landmark or as a contributing building in a historic district by a unit of State or local government, may retain the name historically associated with the building or structure.”

The provision allows the Park Services to continue to use the names of landmarks and buildings, what convenient timing! But what does “retain the name” mean? Can Park Services merely identify the buildings as their historical names? Or can it do more? Can DNC also use the marks? Could DNC maintain an infringement action if the Parks Service or its licensees do more than simply “retain the name?”

Let’s hope that Congress amends this law to clarify the trademark issue.

On the other hand…

Assuming Delaware North really did pay $61.5 million – or some other significant number – for the assets back in 1993, with a contractual expectation that they would be compensated when they lost the concession, aren’t they entitled to something? They sure do look like the bad guy, forcing the poor National Park Service to change these beloved and historic names. But the National Park Service haven’t exactly covered themselves in glory, either.

It seems to me that the brand names and trademarks should have been owned by the National Park Service all along. They shouldn’t have been transferred in 1993, nor in any prior agreement.

Furthermore, the National Park Service would be well served exercise some basic due diligence from time to time, like any large entity should, and monitor the USPTO for filings related to their valuable brand names. They could have objected way back when Delaware North filed the applications, which are a matter of public record. Of course, the objection might have run into problems when it was revealed that Delaware North’s contract purported to give them the rights in these marks, so one could argue that the Park Service wouldn’t have had the right to object in the first place.

At the very least, when the concession contracts were put out for bid in the 2008 round, the National Park Service should have taken that opportunity to revise the documents so that the names and trademarks were returned to their rightful owners. And perhaps they should have simply found a way to compensate Delaware North at that time for the fair market value of the trademarks. Effectively, this is what Delaware North claims they’ve been trying to accomplish all along.

In the end, this is more of a contracts problem than a pure trademark conflict. There are no clear good guys or bad guys here. Delaware North is getting more than its fair share of bad press, and I’m not going to argue that they’ve handled this in the public’s best interest. But it seems like it’s time to take a hard look at the National Park Service’s contracting procedures when it comes to intellectual property issues.

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