Grand Canyon and Trademarks

The Grand Canyon State – that is Arizona. Since the 1940’s, the standard Arizona license plate says as much

AZ lic plate

When it comes to the Grand Canyon, President Theodore Roosevelt said,

 “… Arizona has a natural wonder which is in kind absolutely unparalleled throughout the rest of the world. I want to ask you to keep this great wonder of nature as it now is. … Leave it as it is. You cannot improve on it. The ages have been at work on it, and man can only mar it.” http://www.nps.gov/thro/learn/historyculture/theodore-roosevelt-and-conservation.htm

Teddy Roosevelt went on to deem the Grand Canyon a national monument. Our National Park Service (NPS) manages this natural wonder.

To accommodate visitors from all over the world, the Grand Canyon has lodges known as Phantom Ranch, Bright Angel Lodge, and El Tovar. The historic El Tovar first opened in 1905 and Teddy Roosevelt stayed there. Mary Jane Colter designed Phantom Ranch and Bright Angel Lodge in the early 1900’s and she even named “Phantom Ranch.” Through government-private corporation partnerships, the Fred Harvey Company worked with the Santa Fe Railroad (and Mary Jane Colter) in building and operating these lodges.

The names Phantom Ranch, Bright Angel, and El Tovar are also the names of hiking trails, creeks, walking tours, campgrounds and destinations inside the Canyon. The name of the Bright Angel trail and creek predates the current lodges by at least a decade. When you talk of experiencing the Grand Canyon, you are likely to mention Phantom Ranch as a destination, Bright Angel as a trail or campground and El Tovar as a meeting point or for lunch.

But now these names, which are synonymous with the Grand Canyon, are about to be registered as trademarks at the U.S. Patent & Trademark Office (PTO). Xanterra Parks & Resorts, Inc. (Xanterra) has filed trademark applications at the PTO for “Phantom Ranch,” “Bright Angel Lodge,” and “El Tovar” for hotel and restaurant services, and gift shops, among other things. [UPDATE – Xanterra has expressly abandoned all of the trademark applications. The PTO needs to process the abandonment.]

A trademark is “word that is used by a person to identify and distinguish the services of one person, from the services of others and to indicate the source of the services.” When I hear the words “Phantom Ranch,” “Bright Angel,” and “El Tovar,” I think of the Grand Canyon. But, Xanterra has stated in its application that when the words are used for hotel and restaurant services at the Grand Canyon, Xanterra is the source of those services. Thus, Xanterra is entitled to register the names as trademarks for these services.

So, how did Xanterra became the source of these services? As the lodges are in Grand Canyon and managed by the NPS, how does a private corporation obtain trademark rights in the names?

Well, it appears from the trademark applications, that Xanterra can actually trace its roots and rights to these names back to 1905 and the Fred Harvey Company. During the development of tourism at the Grand Canyon, the government worked with the Fred Harvey Company to develop transportation and accommodations at the Grand Canyon. At some point, the NPS signed a management contract with Xanterra (or its related company) to manage the lodge at Phantom Ranch, the Bright Angel Lodge, and the El Tovar hotel. Therefore, by contract, Xanterra is the source of the lodging services and thereby entitled to a trademark registration on the names.

But, why did Xanterra apply for a trademark now after supposedly using the marks for over a century? It is likely an offensive (or perhaps defensive) move by Xanterra because of its recent dispute with the NPS over Xanterra’s management contract. Why NPS (or rather its predecessor) did not take trademark ownership of the names, Phantom Ranch, the Bright Angel Lodge, and the El Tovar hotel as part of the government/private corporation agreements back in the late 1800’s and early 1900’s is likely just an oversight. The end-result is that a private corporation is now apply for registration of, and the PTO has approved, a trademark in the names.

Frankly, I would like to claim that the marks are so well-known and associated with a location (here, a national monument) that it is not acceptable to grant a trademark registration to a private corporation (as opposed to NPS) for lodges on public land managed by the NPS, and for names that identify not just lodges but also trails, creeks, campgrounds, and destinations in the Grand Canyon. But, that’s not how trademarks work.

Here, Xanterra can claim that it has been using the marks for over 100 years, controlling the quality of the goods and services offered at the hotel and lodges, and that its use has been substantially exclusive and continuous during all this time. As a result, Xanterra has a trademark in the names.

How could things have been different? NPS should have granted a trademark license to Xanterra for the names, “Phantom Ranch,” “Bright Angel Lodge,” and “El Tovar.” The names and operations all existed when the Grand Canyon became a national park. The government helped in procuring the development of the lodges. With the benefit of hindsight, we can say that there should have been a clear allocation of rights to the names and the government should have included a trademark license in its management agreement.

So, what happens once Xanterra has a registered trademark for Bright Angel Lodge and El Tovar? If Xanterra ever loses its contract with NPS to operate the lodges, the new operator would need to (i) change the names of these historic lodges, (ii) license the names from Xanterra, or (iii) pay Xanterra for the trademarks. It seems Xanterra may be claiming an additional economic benefit that may not have been contemplated in the original management agreements. It’s likely a great strategic move to up-the-ante on the financial terms in the under-negotiations agreement. But, it also seems to make President Roosevelt’s warning about the Grand Canyon a prophecy “man can only mar it.”

 

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One thought on “Grand Canyon and Trademarks

  1. Interesting, to say the least. Prince is notorious for making sure his music is not used for any purpose other than his., thus we’ve been saved from his current crap. Guess some good comes from copyright laws!

    Like

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