Does Delaware North Co. own the name to the Wawona Hotel? A prominent historian doesn't think so/David and Kay Scott
While the Delaware North Company maintains that it can claim place names in Yosemite National Park as part of its intellectual property with a $51 million value, a prominent historian of the national parks disagrees and hopes the National Park Service will challenge the company's belief.
The issue arose earlier this year when the National Park Service prepared a prospectus for companies interested in running concessions in Yosemite. During the process of putting the prospectus together, Delaware North notified the Park Service that it held ownership to such names as The Ahwahnee Hotel, the Wawona Hotel, Curry Village, Badger Pass, and other places in the park. Furthermore, the company said that if it lost the bidding for the 15-year contract that begins in 2016, the winning bidder would have to pay it $51 million for the right to those names.
While the Park Service has not officially recognized Delaware North's claim, it has in the prospectus left open the door for a renaming of all the places to which the claim extends if another company wins the contract.
In claiming the place names as their own, Delaware North officials point out that when they won the concessions business at Yosemite in 1993, the Park Service required the company "to buy the stock of the previous concessioner, Yosemite Park & Curry Co. (the Curry Company) at a price that was established in advance by the NPS," DNC's Yosemite spokeswoman, Lisa Cesaro, said in an email to the Traveler. "With this stock purchase, because DNC Yosemite then owned the entirety of the Curry Company, it also became the owner of all the assets of the Curry Company, both tangible and intangible, and responsible for all of the liabilities of the Curry Company, which the Curry Company had accumulated since its inception in 1899.
"The assets purchased included many significant structures, such as The Ahwahnee hotel, Yosemite Lodge and Curry Village, all of which had been built by the Curry Company with its own capital; operating assets such as the furniture, fixtures, buses, business systems and other equipment used in the concession operation, all of which were purchased by the Curry Company with its own capital; and intangible assets such as the various registered place names operated under the concession contract, mailing lists, employee data and policies and procedures, which were also accumulated over the years by the Curry Company," she wrote.
While Delaware North was required under terms of that 1993 contract to give up its interest in the physical facilities, such as The Ahwahnee Hotel and Curry Village, noted Ms. Cesaro, it retained the intellectual property rights to place and facilities in Yosemite.
But Dr. Alfred Runte, author of National Parks, The American Experience (now in a 4th edition), and Yosemite, The Embattled WIlderness, which examined the attempt to balance environmental preservation and human recreation and enjoyment in the park, disagrees with Delaware North's position.
'DNC's insistence that it owns intellectual property rights to the place names of Yosemite is ludicrous. This is nothing more than a 'poison pill' meant to discourage other bidders," said Dr. Runte, who is a contributing writer to the Traveler. "I cannot imagine why the National Park Service is playing along, but then, most in the Park Service don't know the history, either. It's in my Yosemite: The Embattled Wilderness, if they would care to read it. Even then, they should not have to read it here.
"The rights of concessionaires do not extend to the place names of our national parks. If the Park Service is allowing that suddenly these place names are private property, the managers responsible should resign. Nor should Delaware North ever be allowed to bid on a park contract again," said the historian.
Park officials have not indicated whether they will challenge DNC's claim beyond giving other companies the option to rename buildings and places in Yosemite if they were to win the next concessions contract, rather than paying DNC $51 million.
However, in a possibly related move, the Park Service at Mammoth Cave National Park in Kentucky, where a new concessions contract is up for bid, is allowing the next concessionaire to "develop a cohesive, marketable brand" for the concessions operation, but specifically states that "(T)he Service will not consider any name changes as intellectual property of the Concessioner."
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Comments
IMHO, Delaware North shouldn't be allowed to bid on any concessions contracts with the NPS, period.
They are a *terrible* concessioner.
My respect for Mr Runte has certainly grown in recent months but I question his reasoning here. Actually there is no reasoning, only a claim: "The rights of concessionaires do not extend to the place names of our national parks."
What is the basis of that claim? Certainly that is true of the natural features to which DNC had no ownership but trademarks and other intangible assets it purchased are rightfully owned by DNC. But what's the fuss, will the Awahnee Hotel be less historic or attractive called by a different name? I doubt it.
According to trademarks and servicemarks filed, DNC only bought some of the names from Curry. As I noted on another article, some were created and filed after 1993.
Why some of the trademarked names were allowed to happen, I cannot begin to fathom.
At issue here, and something I haven't seen anyone comment upon, is how trademark and copyright laws were altered by Congress in the 1980's under the era of our Great Deregulator. There was a time when patent and trademark claims were submitted first to a federal office and vetted for their accuracy and credibility. But the laws were changed so that government bureaucrats were eliminated from the process and anyone could make an initial claim to a trademark or copyright, which can only now be enforced through the courts.
So DNC has asserted a claim, but there is nobody to stand in the way until they actually sue the next concessioner or the NPS for the rights to use these historic place names. I would be willing to bet that they will not prevail in a lawsuit, but that doesn't stop them from throwing down the gauntlet and intimidating the NPS and competitors in the bidding process.
That is my understanding also Waning gibbous. I could not agree with Alfred Runte more however, it is simply outrageous. It is interesting to note that the old Yosemite Park and Curry Company has seen 3 different owner/companies since the early seventies, ending with MCA, which led to Delaware North. The park did question the contractual clause, but of course the agency was removed from the process. They were left in the dark. The "Great Deregulator" had taken his pen to making government regulation an evil, "the problem is the government", as he stated so many times. I hope you are right Waning, it is simply another corporate ripoff, the taxpayer ending up footing the bill.
Could you identify those changes in the law? Fact is, the final arbitrator has always been the courts. The rights exist or don't exist by law.
{edit} Law established by Congress, not executive fiat.
Trademark Law Revision Act, 1988 (P.L. 100-667)
It would seem that the NPS vendors don't have much respect for them. I can't imagine a vendor in private business suing without first giving up any hope of being a vendor in the future. I apparently don't understand the dynamics of government sourcing / bidding but it doesn't sound like a healthy way to do business.
Does no such thing. The TLRA of 1988 removes the requirement to have already used a trademark and suppliments it with an "intent to use" alternative for filing. Otherwise the bureaucratic process is the same:
"The "intent to use" applications will be examined for substantive and procedural errors by PTO examining attorneys upon receipt just like applications based on actual use in commerce and then published for opposition in the Official Gazette."
http://www.rjg.com/byte1.html
Mr Buck -- I think we fundamentally agree that this issue will not be resolved unless and until it gets presented before a judge of competent jurisdiction. That ain't you and it ain't me; but it ain't DNC, either. They have made a claim, and the NPS is wise to disavow their corporate ownership of Yosemite's historic place names.
Regardless of what the law says, the PTO's ability to review applications is toothless without the personnel to do so. At this point, the figurehead position of US-PTO remains unfilled thanks to the ongoing destabilization of government by elected officials. The lights may be on, but nobody's home . . .
http://www.gpo.gov/fdsys/pkg/GAOREPORTS-GAO-07-1102/html/GAOREPORTS-GAO-...
And so, only the overburdened courts can provide relief.
With or without personnel at the PTO, only the courts will provide final relief and that has nothing to do with your attempted slur of the "great deregulator".
That's a good point if you don't mind paying the 3x or 4x cost increase to the American people to address such issues in the courts, rather than simple x costs in the US-PTO. And I don't need to slur your hero, history will do so without my opinion.
Waning - perhaps you are unfamiliar with the American system. The courts have always been the last arbitor and there has been nothing, including the 1988 Tradmark Act, that has changed that. Your 3x-4x "cost increase" claim is pure fabrication.
we need to stand up against Delaware North. These names are part of the national heritage of the park. This is insane corporate greed. The replacement names are so white bread lame. Where's the honoring of native Americans??! Next up Home Depot Lodge? State Farm Falls?
We just went to Yosemite National Park yesterday and was confused by all the name changes. I've been visiting our National Parks for over 60 years and never have heard anything like this--> A past consessionaire having trademark rights to The Ahwahnee (now The Majestic Yosemite Hotel?), the Wawona (now Big Trees Lodge?) , Curry Village (now Half Dome Village?), Badger Pass (now Yosemite Ski Area?) and also the name "Yosemite National Park". This is exactly what John Muir was fighting against--> Profit hungry companies trying exploit public natioal treasures for comercial gailn. Delaware North Consession Company needs to be shut down by all measures available.
It's a large company and national park and similar properties are only a fraction of their business. Also, since it's the federal government they're dealing with, they have the protection of legal requirements that contracts be awarded on a legal, rational basis. Otherwise it would be possible for the federal government to shut out anyone they disagree with for a minor detail. That being said, I've heard some state legislator specifically propose legislation to shut out DNC from any contracts with the state unless they dropped their claims to these trademarks. DNC had several concessions renewed after their lawsuit, including at Sequoia National Park as well taking over a concession at Grand Canyon.
This will all eventually work its way out in the courts. This was really the first time this has ever come up with National Park Service property. As it stands, the National Park Service is vigilant and they probably have interns scouring the UPTO database for applications involving NPS propoerties. An example is when Xanterra tried to register several trademarks for Grand Canyon properties owned by the federal government. NPS objected the Xanterra abandoned the registrations.
There are some trademarks where it might be reasonable to assume that the concessionaire specifically developed said trademark. An example would be the "Bracebridge Dinner" at what used to be the Ahwahnee.
By the way, Delaware North offered to allow the continued use of those trademarks while the court case goes on. However, NPS decided to use those temporary names partially as a strategic measure. Although NPS still asserts that DNC doesn't have a right to them, as a secondary tactic they're trying to show that the value of those names are really in the properties themselves, and that visitation won't change as a result of a name change. That would weaken DNC's position on the value, even if a court rules that they own them.