The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The National Park Service has announced—amidst considerable public outcry—that as of March 1, the names of several iconic buildings and historic landmarks inside Yosemite National Park will be changed: the Ahwahnee Hotel—a name it has had since 1927—will be known as "The Majestic Yosemite Hotel"; "Curry Village" (1899) will henceforth be "Half Dome Village"; the "Wawona Hotel" will become "Big Trees Lodge"; "Badger Pass Ski Area"—California's first ski resort—will be renamed the "Yosemite Ski & Snowboard Area"; and "Yosemite Lodge at the Falls" will become the "Yosemite Valley Lodge."
And why, you may ask? As NPS acknowledges, the changes are a response to a lawsuit filed by Delaware North Corp. (DNC), the giant privately held food/lodging/hospitality services provider. DNC was awarded the contract back in 1993 to run the Yosemite concessions (including all of the above hotels, and much more). In 2014, NPS re-bid the concession contract, terminated DNC's role in Yosemite and replaced it with Aramark.
So far so good. DNC's lawsuit doesn't challenge the re-procurement or termination of the contract. But apparently, its contract with NPS had a provision under which NPS promised to ensure that any successor concessionaire, in the event of a re-procurement, would compensate DNC for the buildings, facilities and "other property" that it owned in connection with the concession contract.
And that, according to DNC, covers its intellectual property—in particular, a series of trademarks it claims to own (in the names "Ahwahnee Hotel," "Curry Village," "Badger Pass Ski Area," etc.). Here's how DNC characterizes its claim:
Why is DNC Yosemite taking legal action against NPS?
Our contract with NPS requires NPS to require the next concessioner to buy all of the property DNC Yosemite uses in connection with its Yosemite operations, just as we were required to buy all of the property of the Curry Company at the outset of our contract, including intellectual property. NPS expressly stated in the prospectus for the new contract that the new concessioner would be required to purchase DNC Yosemite's intellectual property. Now, however, NPS has notified DNC Yosemite and the new concessioner that it will not require the new concessioner to buy DNC Yosemite's intellectual property in spite of its earlier positon. This is a breach of contract. In addition, it undermines the fairness of the bidding procedure NPS followed to award the new contract. DNC Yosemite is entitled to legal remedies for NPS's actions."
DNC values these trademarks at around $50 million, and its claim appears to be that NPS has a contractual obligation to ensure that Aramark reimburses it for this loss. [Again, I say "appears" because I haven't found a copy of the complaint—insert angry comment about PACER and the lousy state of public access to court filings here].
Not having seen the contract, I won't comment on the strength (or lack thereof) of DNC's claim. It does strike me as something between unfortunate and outrageous that it can claim trademark protection for these names—many of which predate DNC's presence in the park and have some pretty deep associations for millions of the people who have visited Yosemite over the years. And its claim that the trademarks are worth $50 million independent of the right to continue to run the concessions strikes me as far-fetched, as well.
It's a very unfortunate business. It does represent a weird kind of "cultural appropriation" by DNC—appropriating the names by which little bits of the cultural landscape have been known and referred to over the years, all as a consequence of having been given the exclusive right to use those names by the American people 20 years ago. It doesn't seem right, somehow; DNC has gotten a good deal of heat in the press for its actions, and it would be nice to think it might reconsider.
Dan Rogers, who has an excellent analysis of DNC's claims here, writes:
At some point, America needs to say enough is enough. Just as laws were passed to protect Yosemite's Giant Sequoia from logging and its meadows from sheep grazing, the public's right to print t-shirts and mugs with the name Yosemite National Park should be protected. And it isn't a frivolous endeavor. One hundred years from now, our great, great grandchildren will know what it means to buy an ice cream in Curry Village, stay a night at The Ahwahnee hotel, or ski a run at Badger Pass.
But putting all that aside, what I'm still trying to figure out is: Why is NPS changing the names? What good does that do? The DNC suit doesn't demand that it stop, and it's not clear why changing the names will have any effect on the result in the case.
My guess is that NPS promised, in the new contract it entered into with Aramark, to indemnify Aramark in case it (Aramark) is hit with trademark infringement claims arising out of the contract re-procurement and that NPS is trying to protect itself from having to pay up in the event that DNC decides to bring an action against Aramark for continuing to use these names in the future.
And here's a little bit of federal statutory arcana I came across while browsing in Title 54 of the US Code ("National park service and related programs"), subtitle III ("National preservation programs"), Part A ("Historic preservation"), Subpart 2 ("Historic preservation program"), Chapter 3021 ("National register of historic places")**:
"Notwithstanding section 43(c) of 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." 54 U.S.C. 302106.
For extra credit: How might that affect DNC's trademarks (and/or its entitlement to compensation from NPS)?
[** Okay, I'll be honest—I wasn't really browsing through the Code—David Lizerbram pointed to this provision in his blog posting about the case.]