Just like in other businesses, intellectual property, including trademarks, are key assets used in the day-to-day operations of concessions within national parks. The trademarks used by DNC Parks & Resorts at Yosemite (“DNCY”) in the operation of its business identify the unique goods and services that it provided. Trademarks and intellectual property have been used by concessioners in National Parks for as long as National Parks have existed. Many of the trademarks that DNCY acquired when NPS required that DNCY purchase the Yosemite Park & Curry Company have been in use for decades.
For example, the name “The Ahwahnee” has been used since the hotel was first opened in 1927. The Curry Company registered the name with the U.S. Patent and Trademark Office in 1988, and DNCY was required to purchase the trademark from the Curry Company in 1993. Registered trademarks are held by concessioners in other national parks, are a matter of public record and can be viewed by anyone.QHow can DNCY claim to own names of things related to Yosemite National Park?
DNCY acquired the intellectual property it uses at Yosemite National Park, including trademarks, in two ways.
First, in September 1993, as a condition to becoming the concessioner for visitor services at Yosemite National Park, the NPS required DNCY to buy the existing concession company, the Curry Company. As a result, DNCY became the owner of all of the Curry Company’s assets, including all of its intellectual property.
The Curry Company and its predecessors in interest had been operating at Yosemite National Park for more than 100 years (both before and after it became a national park). The property that DNCY purchased was all created or purchased by the Curry Company over the course of that time. When NPS required DNCY to buy the Curry Company’s property, the property included, among other intellectual property assets, the following registered trademarks:
- Yosemite National Park Half-Dome logo design
- “Go Climb A Rock”
- “Bracebridge Dinner”
- “The Ahwahnee”
- The Ahwahnee hotel logo design
NPS’s requirement that DNCY buy Curry Company also meant that DNCY acquired all of the Curry Company’s unregistered trademarks and other intangible property, including customer lists, copyrights, records and other intangibles. Subsequent to its purchase of the Curry Company, DNCY registered the following trademarks that the Curry Company had been using in its operations at Yosemite National Park:
- “Vintners’ Holidays”
- “Chefs’ Holidays”
- “Yosemite Lodge” and related logo design
- “Curry Village”
- “Yosemite National Park”
- “Badger Pass”
- The Pinecone logo design for Curry Village
Second, DNCY created and registered the following additional trademarks while operating Yosemite National Park:
- Yosemite/Half-Dome recycling logo design
- Yosemite’s Badger Pass and related logo design
- Chefs’ Holidays logo design
- “Yosemite” with related logo design
- Wawona logo
- “Yosemite Security, Fire, Life Safety” and related logo design
- The climbing rope logo for the Yosemite Mountaineering School
- “The Mountain Shop at Yosemite” and related logo design
- The Badger Pass paw print logo design
DNCY also developed additional intellectual property assets during the course of providing visitor services at Yosemite National Park. DNCY created and developed websites, obtained and registered internet domain names and created social media accounts, all of which have proven to be valuable tools to increase visitation to the Park. DNCY has enhanced the customer list that it originally obtained from the Curry Company. DNCY has been a committed steward of the intellectual property it acquired, developed and protected in connection with the park. Through its payment of franchise fees, DNCY paid the NPS a portion of every sale of a product bearing one of DNCY’s registered trademarks.
Registering these trademarks also helped to ensure that these names would always be connected to Yosemite National Park. Under the terms of its concession contract with the National Park Service, upon the expiration of its concession contract DNCY is required to sell and the successor concessioner is required to purchase these trademarks. That purchase will not cost the American people a single penny, because the successor pays.
The United States Patent and Trademark Office recognizes each of the registered service and trademarks in accordance with federal rules and laws. Those rules and laws give DNCY the exclusive right to use the trademarks for specified purposes. For example, though DNCY owns a trademark for “Yosemite National Park,” Yosemite National Park will always be able to operate under that name. DNCY’s registered trademark for Yosemite National Park means that DNCY is the only business that can sell souvenirs (like pens and coffee mugs) with the name Yosemite National Park on them. By registering these trademarks, DNCY ensured that the American people benefited from sales of products bearing these trademarks rather than a third party (because DNCY is required to pay franchise fees to NPS on the revenue it generates from its activities at Yosemite National Park). If DNCY did not take that proactive step, third parties may have the ability to register these trademarks and keep all of the profit from selling goods bearing those trademarks for themselves.QIs there a possibility that the names won’t be used in Yosemite?
Our contract with the NPS requires us to sell the names to the next concessioner, and requires NPS to make the successor buy the trademarks, just as we bought the then-existing trademarks from the company before us. However, NPS has given Aramark the opportunity to change any place names within Yosemite, such as The Ahwahnee, subject to NPS approval, so whether the names will continued to be used is outside of DNC Yosemite’s control.QWas this a tactic to scare off or lessen competition in the award of the concession contract?
Absolutely not. The new contract requires a successor concessioner to purchase DNCY’s assets before being awarded the contract, and the bidders on the new contract had to take into consideration in their proposals the estimated purchase amount in connection with the compensation they proposed to pay the NPS. Given this, it was critical that the bidders have realistic financial information before submitting their proposals. DNCY wanted to ensure a level playing field by providing all bidders with clear and certain financial assumptions, because when bids are premised on differing financial assumptions, it is challenging to create an apples-to-apples comparison of the bids. As it happened, bidders for the Yosemite National Park concession contract faced uncertainty because all that the NPS provided to them were estimates of the required purchase amount, and the NPS’s estimates differed enormously from the estimates in DNCY’s independent appraisals.
QHow much did DNC Yosemite pay for the stock of Yosemite Park & Curry Company in 1993?
In 1993, as a condition to the award of the Yosemite contract, the National Park Service required DNCY to pay approximately $61.5 million (more than $115 million in 2015 dollars) to purchase the Curry Company. By purchasing the Curry Company, DNCY also assumed all of the Curry Company’s liabilities, including substantial and, at the time, unquantified, liabilities for environmental cleanup at sites within Yosemite National Park with known environmental contamination and pension liabilities. DNCY was the bidder willing to accept these conditions. The payment amount was set in advance by the NPS with the agreement of the Curry Company. Here, even though NPS is required to cause the successor to buy all of the property DNCY uses at Yosemite National Park, the assets to be purchased and the values for those assets remain in flux, creating great uncertainty for all involved.QDid DNC advise the NPS of its ownership of intellectual property?
Yes. DNC Yosemite purchased many of the trademarked and protected names in 1993 when the NPS required us to buy the common stock of the Curry Company. Ownership of intellectual property has been a common business practice of concessioners in National Parks and was shown by appropriate registration marks on the protected names in marketing brochures and on DNC Yosemite’s website. Our marketing materials are approved by the NPS. Issues relating to intangible asset ownership and valuation were raised with the NPS in June 2014 prior to the issuance of the prospectus for the new Yosemite contract.QWhy does DNCY think that it is fair that the American people should have to pay it for its intellectual property?
We do not think the American people should pay. This is one of the misconceptions that DNCY is trying to clear up. The next concessioner is obligated to purchase the assets, not the American people or the NPS. DNCY is trying to enforce its contractual rights, which obligate the NPS to require the next concessioner to pay a fair price for the property that the next concessioner is receiving. As a matter of contract law NPS must require the next concessioner to buy the assets from DNCY.