A section of the U.S. Code might allow the National Park Service to ignore trademarks attached to names such as "The Ahwahnee Hotel"/Kurt Repanshek
Efforts by concessionaires to capitalize on the names of such iconic lodges as The Ahwahnee Hotel in Yosemite National Park and the El Tovar Hotel in Grand Canyon National Park might prove to be pointless under a section of the U.S. Code.
That provision, Section 302106, specifically gives the National Park Service the right to "retain the name historically associated with the building or structure" regardless of any trademark. That language is contained within H.R.1068, which became law in mid-December.
Sec. 302106. Retention of name
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.
National Park Service officials in Washington did not immediately respond to Traveler inquiries about Section 302106 and whether they would cite it to resolve recent developments where concessionaires have already received, or have applied for, trademarks to building names in Yosemite and Grand Canyon.
Delaware North Co., through its Yosemite subsidiary, notified the Park Service last summer that it had placed a $51 million valuation on intellectual property it held in Yosemite, including trademarks on such properties as The Ahwahnee Hotel, Curry Village, and the Wawona Hotel. Xanterra Parks & Resorts moved in similar direction in Grand Canyon in November when it applied for trademarks to most business names in use on the South Rim of the national park.
But under Section 302106 those trademarks might prove worthless, as most, if not all, the buildings the names are attached to have historic significance.
In Yosemite, there are more than 40 historic properties comprising sites, objects, buildings, and districts listed in the National Register of Historic Places. The park is also home to five National Historic Landmarks: The Ahwahnee Hotel, Le Conte Memorial Lodge, Parsons Memorial Lodge, the Rangers' Club and the Wawona Hotel & Thomas Hill Studio District.
Yosemite's historic districts include Camp Curry, and listings on the National Register of Historic Places include the High Sierra Camps at Glen Aulin, May Lake, Merced Lake, Sunrise, Tuolumne Meadows, and Vogelsang. The listings of Wilderness cabins include Buck Camp Patrol Cabin, Frog Creek Cabin, Lake Vernon Snow Survey Shelter, Sasche Springs Snow Survey Shelter, Merced Lake Ranger Station and Snow Survey Cabin, Ostrander Lake Ski Hut, and the Snow Flat Ranger Station and Snow Survey Cabin.
Dan Jensen, president of DNC Parks & Resorts at Yosemite, said Monday that he was unaware of Section 302106 and didn't know how it might affect the company's $51 million claim.
"'I've never seen that before you sent it, so I don't really know what to make of it," he said during a phone call. "Somebody does need to figure out what this means."
Speaking to the overall issue of intellectual property that DNC claims in its Yosemite operations, Mr. Jensen said there needs to be a meeting with Park Service personnel to clearly identify what intangible property DNC has accumulated over the years and assign a value to it.
"I still think that's the step that''s been missing," he said. "What's the list of assets and what are they worth?"
The issue of intellectual property at Yosemite and DNC's ownership came up as the Park Service was soliciting bids for a 15-year concessions contract that is to begin in 2016. DNC officials, hedging against the possibility that they might not win that contract, wrote the Park Service to outline their intellectual property assets and the $51 million valuation they had placed on them. If they lost the next contract, they wanted to receive that amount in compensation from the winning company.
The Park Service initially balked at including the $51 million in the contract prospectus as part of DNC's possessory interest that it would have to be compensated for. But in an amendment to the prospectus for the new contract, the agency said the winning bidder, if not DNC, could rename buildings in the park. A bit later, the Park Service amended the prospectus to place a $3.5 million valuation on DNC's intellectual property claims.
Just as DNC said a third party had appraised the value of its intellectual property at $51 million, the Park Service said it had used an outside appraiser to come up with the $3.5 million valuation. Park Service officials in Yosemite and in the concessions office of the agency's Pacific West Region did not respond to inquiries as to how they arrived at that dollar figure, or why they came up with the figure while the Solicitor's Office in Washington was researching whether DNC could seek compensation for the trademarks.
Regardless of whether Section 302106 resolves the trademark issue, DNC officials still would like to sit down with Park Service officials to sort through the value of other intangible property they hold in Yosemite.
"It's not an issue of if you're going to figure out value. At some place you need to figure out value," Mr. Jensen said. "Their $3.5 million, there is no list and there is no indication of how they got there. So something is still missing."
Last week the Park Service announced that it had received at least two bids for the contract. The winning concessionaire is expected to be named this coming summer.
Xanterra Parks & Resorts has applied for a trademark to "El Tovar."/NPS
At Grand Canyon National Park, where Xanterra Parks & Resorts has applied for trademarks for most businesses on the South Rim, buildings already listed on the National Register of Historic Places include the El Tovar Hotel, the Grand Canyon Village Historic District (which includes the El Tovar as well as the Bright Angel Lodge, the Buckey O'Neill Cabin, Lookout Studio, Hopi House, the Kolb Brothers Studio, the Grand Canyon Depot, and the Grand Canyon Railway), the Desert View Watchtower Historic District, and the Hermit's Rest concession building.
Trademark applications for "Phantom Ranch," "Bright Angel Lodge," "Kachina Lodge," "Yavapai Lodge," "Maswick Lodge," "Red Horse Cabin," "Arizona Room," "Lookout Studio," "Buckey O'Neill Cabin," "Thunderbird Lodge," "Trailer Village,""Hopi House," "Hermit's Rest," and "Desert View Watchtower," were filed by Xanterra last November.
Park Service officials in Washington have said they were monitoring the trademark application process and would raise concerns, if merited, at the appropriate public comment period.
Comments
Alfred, interesting post, I agree, imperfect men make imperfect laws, but thank goodness we now have imperfect women in the mix. What did it take for women to get the vote, ever since Abigail Adams wrote her husband, John Adams (our second President), " be sure to remember the ladies". Was it roughly 150 years? It in not a perfect system, but it is the system and has worked, more or less, for 240 plus years now. That is an accomplishment.
Change can happen, the NPS, at least in Yosemite, is addressing the issue, but it is always difficult.
I am glad you did your homework, EC, and I see you are a narrow constructionist. So obviously is the National Park Service. But no, Hutchings v. Low was about far more than the preemption laws. It made the national parks constitutional, where they remain today. They are special places in which "business" America gets to practice only by obeying special rules. If there are any "intangible assets" gained by practicing in the national parks, those assets are because the people allowed those practices in the first place. That is what Hutchings tried to deny. He denied even the right of the people to establish the Yosemite Grant. Glad you did your homework, but you still don't get an A. You are supposed to read the entire chapter before reaching for Donald Trump.
Yosemite is not just another shopping mall. But yes, by insisting on the practices typical of shopping-mall America, Delaware North and Xanterra are creating for themselves a public relations nightmare. Good. Let it be on the front page. Precedent is forever evolving in a democracy, and the Hutchings case is getting old. People don't even know what preemption means anymore, or how Hutchings tried to use it against the Yosemite Grant.
As for my having "standing" in court, remember, two plus two is whatever I want it to be. In other words, two can play at this game. You want to bet there won't be hundreds of people suing to protect their "memories" of the national parks? Are memories not "intangible assets," too?
I will say this, EC. You are consistent. You believe that the business of America indeed is business. I wish I could say you were wrong about that part. Still, there is a lesson here for everyone. When the railroads practiced business in the national parks, they at least had taste. Lately, thanks to franchising, taste is something found only in the mouth.
Alfred - please cite from the decision any mention of National Parks or intangible assets. That is all in your imagination.
The decision was based solely on whether Hutchings met the preemption requirements. The court ruled against him on what I would call a technicality that was totally in opposition of the spirit of the preemption laws. The preemption laws were made to encourage settlers to move into the unpopulated areas and guaranteed them, in essence, the right of first refusal to purchase settled land at a predetermined price when it was surveyed and made available to the public. (Yes I read that tedious book someone recommended earlier) Hutchings settled that land under that basis. He got screwed because the land wasn't sold but given away instead.
Yes. Or at least I'll bet they won't win their cases
Exactly, EC. The court ruled against him on "a technicality." Now what do you suppose that "technicality" would be if the Supreme Court were to rule against Delaware North, et al., in this case? Perhaps that the people own the national parks--and have every right to determine their management? If you want to operate a hotel, that is allowed. You just can't extort the government by claiming ownership of something you never owned. Intangible property? Every park is a tangle of "intangibles" that still belong to the people. You want to separate yours out? Fine. Then the people get to separate theirs out. What among our "intangibles" contributed to your bottom line? Everything. You owe us the $51 million.
EC, what are you so mad about? Did your country not give you enough? Mine did. Certainly, I have ten times more than my father or mother ever had. Would I be "happier" if it were 100 times? When these people stand before Saint Peter, will it matter how much they "got" or "had?" If I were advising them, I would advise they drop this now. We are sorry. We made a mistake. We let our lawyers advise us poorly.
That is why John Muir stands head and shoulders above James Mason Hutchings even today. Muir did not file on the mountains he loved. Hutchings claimed to love them but still wanted to "own" them. We own things on this planet for a little while, and then we are gone. That is what makes me mad. Too many owners and not enough lovers, and yes, too many people saying that is THE MARKET.
Don't know that I am mad, but do know my country didn't "give" me anything other than my inalienable rights and the protection there of. Beyond that, unlike many of the others here, I don't expect it to give me anything and I certainly don't expect it take things away.
Several references for understanding Native Peoples and Their Sacred landscapes
vs Selling/Owning The Land
On Muir and the Yosemite:
http://www.ushistoryscene.com/uncategorized/johnmuir/
Dispossessing the Wilderness: Indian Removal and the Making of the National Parks Paperback – November 2, 2000by Mark David Spence
National parks like Yellowstone, Yosemite, and Glacier preserve some of this country's most cherished wilderness landscapes. While visions of pristine, uninhabited nature led to the creation of these parks, they also inspired policies of Indian removal. By contrasting the native histories of these places with the links between Indian policy developments and preservationist efforts, this work examines the complex origins of the national parks and the troubling consequences of the American wilderness ideal. The first study to place national park history within the context of the early reservation era, it details the ways that national parks developed into one of the most important arenas of contention between native peoples and non-Indians in the twentieth century.
and
http://www.archives.gov/publications/prologue/1985/spring/chief-seattle....
Spring 1985, Vol. 18, No. 1
"Thus Spoke Chief Seattle: The Story of An Undocumented Speech" By Jerry L. Clark
EC--
"It may require permission and require certain actions to maintain listing but I am fairly certain it doesn't transfer ownership."
Listing in the registry doesn't transfer ownership of the name; the listing in the registry transfers _with_ ownership of the property. The listing and its requirements on the property don't disappear when the property is sold or transferred. The simple example is a 100+ year old house in San Diego that had applied for and received (local) historic status, greatly reducing property taxes for many years. Someone wanted to buy the property, tear it down and build offices. They couldn't, because the historic status listing's preservation requirements transfer with the property: you can't take the tax break for years until you're ready to demolish, then sell to someone (at the developable value) to remove the preservation requirement.
If HR 1068 is truely positive law codification and the "historic preservation of the place name" (which is how I see 302106) was somewhere in the law & regulations when these sites were added to the registry, then it was part of the contract that was signed and I don't think there's any taking. If it isn't codification and that section is new, then I agree that there are issues with retroactivity of the law.
The NPS would appear to disgree.
Listing and Ownership
• National Register listing places no obligations on private property owners. There are no restrictions on the use, treatment, transfer, or disposition of private property.
• National Register listing does not lead to public acquisition or require public access.
• A property will not be listed if, for individual properties, the owner objects, or for districts, a majority of property owners object.
• National Register listing does not automatically invoke local historic district zoning or local landmark designation.
• Federal Regulation 36 CFR 60 authorizes the National Register of Historic Places.
http://www.nps.gov/nr/national_register_fundamentals.htm