The announcement was stunning: The National Park Service (NPS) was to change the names of five iconic locations in Yosemite National Park — from their long-cherished and historic titles to new, generic names — that dared to erase over 150 years of family memories. And the public uproar was heard from Half Dome all the way to the Buffalo, New York headquarters of park concessionaire Delaware North Corporation (DNC).
Even more upsetting was the reason for the name changes: to avoid paying $44 million (an amount determined by DNC, not the park service) for the trademarked names of five locations: the Awhahnee Hotel, the Wawona Hotel, Curry Village, Badger Pass, and Yosemite Lodge at the Falls. Trademarks owned by DNC. Trademarks that the park service says DNC recently acquired without telling the park service. Trademarks that DNC says they were forced to pay for back in 1993 when they took over the concessionaire contract.
According to the park service, to avoid infringing on the trademarked names come March 1 when new concessionaire Aramark takes over the contract, park officials elected to change the names of the trademarks that DNC holds, leaving DNC empty-handed. Shortly after losing the contract, DNC sued the federal government for not requiring Aramark to pay more for the trademarks.
So who is telling the truth?
- Did DNC have to pay for the trademarks in 1993, as they say, or did they acquire them surreptitiously as the park service claims?
- Did DNC really trademark the name ‘Yosemite National Park’?
- How did it even get to this point?
The root of the problem lies in the history and development of the national parks …
YOSEMITE CONCESSIONAIRE HISTORY
For most of the park’s history, the federal government allowed ambitious entrepreneurs, such as James Hutchings, Galen Clark and David & Jennie Curry, to build, own and operate the parks’ tourist attractions, lodging and dining establishments. Those owners often trademarked the names and logos they created. As the park service began consolidation of many of these private operations, it concessionaire contracts to best manage the vast lodging, dining and recreational opportunities.
In 1925, the park service combined the concessionaire contracts of the Curry Company (running the Curry Village tent camp) and The Yosemite Park Company (running Yosemite Lodge) into the Yosemite Park & Curry Company.
In 1973, entertainment giant MCA (which at the time owned Universal Studios, Universal Pictures, and MCA Records), both the Curry Company for $13.3 million. However, almost twenty years later, in 1991, MCA was sold to Matsushita of Japan and the federal government insisted that the contract for concessionaire operations in a national park should be held by an American company.
In stepped Delaware North Corporation, who took over the concessionaire contract in October of 1993, ending a 94-year association of Curry Company with Yosemite National Park. In that $60 million deal, DNC also agreed to buy Curry Co. assets—buildings and equipment—and then turn them over to the federal government. However, not listed in the terms of the contract, the trademarks remained in private hands.
HE SAID, SHE SAID, PART 1
Last year, DNC lost the concessionaire contract to Aramark, who will take over Yosemite concessionaire operations on March 1 of this year. As required by DNC when they took over the contract from MCA, Aramark would be required to purchase the Yosemite assets of DNC. DNC valued its overall “intangible” property in Yosemite at $51 million, with the trademarks listed at $44 million.
As part of the concessionaire hand-over, DNC believes that Aramark should have to pay the $44 million for the trademarks, an amount the park service not only disputes but is not requiring Aramark to pay. (The Park service states that the trademarks are valued at less than $2 million.) DNC cites that they were required to purchase “the assets of the previous concessionaire, including it’s intellectual property, at a cost of $115 million in today’s dollars” when it took over operations in 1993, spokeswoman Lisa Cesaro said.
But, as noted above, DNC was not required to hand over the trademarks in that 1993 deal. DNC repeatedly states that they were “required” to pay for the assets and intellectual property, but the NPS states that DNC was quietly acquiring trademarks in the past ten years, a claim that DNC refutes.
However, the Justice Department (in their counter-suit) claims that the company did not inform the park service when it sought trademark protection for the name “The Ahwahnee,” “Wawona,” “Curry Village” and “Yosemite National Park.” The filing states that the DNC did hire a firm to assess the value of its Yosemite intellectual property in 2010, but the park service wasn’t informed until 2014.
The largest discrepancy that hangs over the entire trademark issue, is when did DNC acquire the trademarks. Did they get them in the purchase of the MCA contract? Or did they acquire them in the past decade, as the park service claims.
HE SAID, SHE SAID, PART 2
According to its lawsuit, DNC Parks was “required to purchase the assets of its predecessor,” Curry Co. under MCA, when it won the Yosemite contract, and it says the NPS is similar obligated to require Aramack to buy “DNC’s assets, including trademarks, at fair market value.”
While DNC Parks did inherit some of the trademarks when it won the Yosemite contact back in the 1990s, it registered others in ensuing years without the government’s knowledge, according to Scott Gediman, Yosemite National Park spokesperson. “They did it all quietly and they did not inform us,” Gediman said.
But Todd Merry, chief marketing officer for Delaware North, DNC Parks’ parent company, said the suggestion of stealth “completely misrepresents” the company’s actions. “We didn’t wake up in 2012 and say let’s trademark the hotel,” he said. “We bought the trademark when we bought the company” more than a decade ago.
A simple trademark search, however, takes the air out of DNC’s above claim. While there were many trademarks that were part of the assets in the 1993 purchase, the trademarking of the disputed names were all acquired in the past 15 years, according to the United State Patent & Trademark Office:
- Wawona, in 2002
- The Ahwahnee, in 2003 (transferred for commerce use from previous 1998 trademark)
- Curry Village, in 2003
- Yosemite Lodge, in 2003
- Badger Pass, in 2009
- Yosemite’s Badger Pass, in 2002
- Yosemite National Park, in 2003
In addition, the sole word “Yosemite” was submitted for trademark by DNC on Sept. 30, 2015.
It is very important to note that the phrase “Yosemite National Park” as a new logo was trademarked on December 9, 2015 by Yosemite Hospitality LLC … which the subsidiary of Aramark that will run the concessionaire contract. But in the terms of the trademark, “no claim is made to the exclusive right to use “Yosemite National Park” apart from the mark (logo) as shown.” The company abandoned the logo trademark effort on Jan. 13, however.
HE SAID, SHE SAID, PART 3
When the January 14 statement by Yosemite officials was released, stating that the five named locations would change in order to avoid any litigation over the use of the trademarked names, the public uproar was instant. What was a regional story quickly became an international story, with multiple news stories, editorial and op-ed columns devoted to the news, characterizing DNC as a greedy corporate overlord full of spite for losing the valuable concessionaire contract.
The NPS played the public uproar card smartly, and DNC was on the defense. However, overlooked by many was the one statement by NPS officials that rendered the potential litigation concern as potentially transparent, when Yosemite National Park spokesperson Scott Gediman stated that the name Yosemite National Park — another trademarked name that is claimed by DNC and in dispute — would stay put and not change, but yet five other iconic names would change.
However, the upper hand that the NPS had with the public sympathy was short-lived, as DNC published an amended 25-page complaint that was filed Jan. 2 — a full 12 days prior to the NPS announcement — that DNC offered the National Park Service a temporary “royalty-free license … to use the Yosemite-related trademarks, with the right to sub-license such use” to Aramark.
“In light of DNC’s offer to license the marks while this litigation goes forward pending an assignment of all rights to the new concessionaire for fair value, NPS had no need to change the names in order to avoid potential infringement claims and was not compelled to do so by DNCY,” the revised lawsuit says.
Now the NPS was put on defense.
And that is where it resides today, awaiting resolution in the federal courts. When a decision comes down, it will not be as to whether a private corporation can trademark a name of a national park location, as that has been already accepted as having occurred.
DNC Parks’ former president, Dan Jensen, said ownership of the trademarks is not the legal matter at issue, because no one has disputed the trademark ownership.
“There is no dispute over whether Delaware North owns the intellectual property,” said Jensen. “The question is what is it worth?”
The decision will be whether the park service caused financial losses upon DNC by not requiring Aramark to pay the value determined by DNC for the trademark assets.
The National Park Service has said that rights to the names were never part of Delaware North’s original deal, and that the new concessions contract with Aramark makes clear that the names will not be sold this time either, Gediman said.