Credit: Bryce Edwards, Flickr
NewsAuthor: Steven Shaw
YOSEMITE NATIONAL PARK, CA -- The war of words between Yosemite National Park and long-time concessionaire Delaware North Company (DNC) is escalating. Today, TrailMob.com spoke with a DNC spokesperson who maintains that the company is “shocked and disappointed that the National Park Service would announce unnecessary changes to the beloved names of places in Yosemite National Park” and documents later provided to TrailMob by DNC support the idea that DNC has been unfairly painted into a corner.
On March 1st, when new park concessionaire Aramark takes over from DNC Parks & Resorts at Yosemite, Inc. (DNCY), certain places synonymous with Yosemite will undergo a “name change.” The Ahwahnee will become the “The Majestic Yosemite Hotel,” the Wawona Hotel will become the “Big Trees Lodge,” Curry Village will become “Half Dome Village,” Yosemite Lodge at the Falls will become “Yosemite Valley Lodge” and Badger Pass Ski Area will henceforth be known as “Yosemite Ski & Snowboard Area.”
The January 14th announcement from the National Park Service states that these name changes were necessary to “eliminate potential trademark infringement issues with the current concessioner of Yosemite, DNCY, a subsidiary of DNC.” However, in a letter to the Department of Interior dated January 2, 2015 (and provided to TrailMob by DNC) DNC offered to provide a royalty-free license of Yosemite National Park related intellectual property. “As a gesture of good faith, and to eliminate any perceived need to permit Aramark to discard the famous names in the Park because of the pending court case, DNCY proposes to grant NPS a limited, royalty-free license to use DNCY’s trademarks for The Ahwahnee, Wawona, Curry Village, Badger Pass, Yosemite Lodge…” and others. This gesture by DNCY may deserve some praise, but is also somewhat self-interested. If the park merely changes the names of these icons, the value of its Yosemite intellectual property is significantly diminished.
Letter from DNCY to the NPS offering royalty-free license to disputed intellectual property. (Dated January 2nd, 2016)
The confidential letter goes on saying “[t]his arrangement will enable NPS to preserve more than a century of cultural history in the park and will allow Aramark to continue the great heritage of private concessioners operating under famous, iconic trademarks such as The Ahwahnee, Wawona Hotel and Curry Village.” This excerpt is from a letter from Executive Vice President and COO of DNC dated January 2nd of this year, nearly two weeks prior to the NPS announcement of pending name changes. The letter was sent to National Park Service Director Jonathan Jarvis, Justice Department Attorney John Roberson and Bruce Fears, the President of Aramark’s Parks and Destinations Division.
To fully appreciate the issue at hand, it is helpful to look at how Yosemite National Park concessions have historically been managed. In 1993, DNCY took over management of the park’s concession operations from the Curry Company. As part of that transition, DNCY contends that the National Park Service required DNCY to purchase all of the assets of the Curry Company for a total of $61.5 Million (Approximately $115 Million in today’s dollars). Evidently, this purchase obligation was a condition in the original agreement between the Curry Company and the National Park Service and is somewhat commonplace in the park concession industry.
DNCY complied and the sum paid entitled DNCY to the Curry Company’s assets, which at the time included its trademarks and intellectual property-including the valuable “The Ahwahnee” mark, which the Curry Company trademarked in 1988. Fast forward to 2015, when DNCY’s contract with the National Park Service is up for renewal and the story gets interesting.
DNCY argues that any future park concessionaire was obligated to purchase its intellectual property under the terms of its agreement with the National Park Service - just as DNCY was obligated to do with respect to the Curry Company many years before. Correspondence between DNCY and the National Park Service (and provided to TrailMob by DNCY) indicates that DNCY and the National Park Service engaged in negotiations over this very matter. Recent events are evidence that a satisfactory resolution was never reached, but the National Park Service appears to have conceded that such an obligation does in fact exist (meaning that Aramark, as incoming concessionaire, would be under the obligation to purchase these assets).
DNCY claims that the $51 Million dollar value of its Yosemite intellectual property is supported by two similar but independent appraisals, with trademarks valued at $44 million and additional assets such as its websites and customer database at $7 million. In addition, they allege that neither the National Park Service nor Aramark have provided appraisals to contest the value.
DNCY contends that the National Park Service is “trying to use them as a bargaining chip in a legal dispute involving basic contract rights.” In a U.S. Justice Department legal filing the government accuses DNCY of “grossly exaggerated and improper fair value of $51 million for its intellectual property.” Justice Department attorney John H. Robertson writes the company “embarked on a business model whereby it collects trademarks to the names of iconic property owned by the United States...”
DNC calls the business model of trademarking federal locations a “common practice for concessionaires… [which] the NPS is well aware of ... having required DNCY to purchase trademarks from the previous concessionaire in 1993. NPS also knew that DNCY registered additional trademarks because the government accepted DNCY's trademark registration applications.” (DNC Press Release).
DNCY also flatly denies its intellectual property is "grossly overvalued" and points out a portion of what it paid the Curry Company back in 1993 was for intellectual property and claims it offered to enter binding arbitration with the NPS to set a fair value for the intellectual property. “Only after being ignored and then rebuffed, DNCY filed a protest with the federal Government Accountability Office requesting that NPS work with DNCY to reach a fair value.” (DNC spokesperson).
DNCY contends that under the terms of its agreement with the National Park Service, they were under an obligation to protect the integrity of Yosemite’s icons from illegitimate use, which they did by way of obtaining the various trademarks (a common method of obtaining intellectual property protection in the United States). The bargain that was struck with the National Park Service, DNCY claims, was that in exchange for this good stewardship, any future concessionaire would be under the obligation to purchase its Yosemite-related intellectual property.
NPS letter to DNCY acknowledging new concessionaire is obliged to buy intellectual property. (December 29th, 2015)
DNCY also accuses the Park Service of flip-flopping on the issue of intellectual property, claiming in “December 2014 [that] NPS notified all potential bidders that the new concessionaire would be required to purchase the intangible assets of the existing concessionaire, DNCY.” Which, if true, resembles the requirement DNC encountered with respect to the Curry Company many years earlier. DNCY alleges that eight months later (and after giving Aramark the Yosemite contract) the Park Service completely reversed course: “in August 2015, NPS sent a letter to DNCY stating that it had decided that it wouldn't require the winning bidder to purchase the intangible assets.”
A December 29th, 2015 letter from National Park Service Chief Financial Officer obtained by TrailMob seems to at least partially validate DNCY claims that the NPS has changed positions on the requirement for new concessionaires. Addressed to Delaware North COO Rich Abramson, the letter clearly states that “the National Park Service withdraws its letter to you dated August 28, 2015, insofar as it is inconsistent with Amendment No.12 to the prospectus for the new CC-YOSE004-16 contract. As stated in Amendment No. 12 the new concessioner must purchase certain intangible property owned or held by DNC Parks & Resorts at Yosemite (DNCY), including certain trademarks, DNCY’s customer service database, and certain Internet-related intangibles.” The letter, pictured above, goes on to argue that while the new concessionaire is obliged to buy some, it is not obligated to purchase all and the National Park service does not agree with what the DNCY considers a fair value for its intellectual property.
The DNC press release continues: “DNCY hopes NPS and the new concessionaire will not change the names of historic places or venues at Yosemite National Park. We purchased these trademarks when we commenced our work in 1993, as required by our contract with NPS, and our only interest is selling them on to the new concessionaire for fair value, a requirement NPS is obligated to enforce. That is why we have offered to license these trademarks, free of any charge, to NPS to avoid any name changes or impact on the park visitor experience while the disagreement between DNCY and NPS heads toward resolution in the courts.”
“In summary, all we want in this is fair and just treatment from the National Park Service and for it to follow the letter of our contract. We fulfilled our obligations in 1993, we have been proud and exemplary stewards of Yosemite National Park for the last 22 years, and we have demonstrated our genuine desire to resolve this matter for the last 18 months.” (DNC Spokesperson).
As is often the case, further investigation has revealed that the situation is not nearly as cut and dry as one might have been led to believe. Recalling that the contract to manage Yosemite is valued at nearly Two Billion Dollars, this shouldn’t come as much of a surprise. The issue, it seems, is two-fold: first, what is the actual value of the various Yosemite-related intellectual property, and second, what did the National Park Service agree to with DNCY under the terms of their initial agreement? Apparently we will have to wait for a resolution to come through the legal system for answers to those questions.
Our requests for comment from the both the National Park Service and Aramark were not returned.
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