A Yosemite National Park trademark challenge now turns, in part, on two dramatically different estimates of what some famous names are worth.
In a new court filing, the government made public more of its evidence for its claim that the park’s former concessionaire put an “improper and wildly inflated valuation” on its trademarks for such names as the Ahwahnee hotel. While the concessionaire valued its Yosemite intellectual property at $51.2 million, the government’s consultant said it’s more like $3.5 million.
The vastly different estimates are more than just bargaining positions, though they may serve that purpose. They also illustrate the difficulties in putting pricetags on names associated with a park as beloved as Yosemite.
“The name brand of the properties has little to do with the visitors’ desire to stay in the park,” Dornbusch Associates reasoned in the January 2015 report filed with court documents Tuesday. “Therefore, trademarked names provide little to no value in the form of additional revenue and profit to the concession operator.”
Justice Department attorneys filed portions of the partially redacted, 45-plus page report with the U.S. Court of Federal Claims, as part of a broader, and in some ways harsher, argument against the former concession company.
None of DNC’s trademarks in its monopoly position at Yosemite contribute the kind of values which Marriott, Hyatt or Hilton contribute to their properties.
Dornbusch Associates, January 2015
The concession company, a Delaware North subsidiary called DNC Parks & Resorts at Yosemite, Inc., seeks compensation for the Yosemite-related intellectual property. This can refer to designs, symbols and names protected by copyright or trademark, including the trademarked names of the Ahwahnee and Wawona hotels, Yosemite Lodge, the Badger Pass ski area and Curry Village.
Following a high-stakes competition, Delaware North lost the lucrative 15-year Yosemite contract to a subsidiary of the Philadelphia-based firm Aramark. Aramark took over Yosemite operations last March, and Delaware North subsequently sued.
Though the park service changed the Yosemite property names amid the trademark dispute, Aramark reports business is still booming.
“Yosemite had a record visitation year in 2016,” Aramark spokesman David Freireich said Wednesday. “Our business was strong all year and we are seeing strong bookings, once again, for 2017.”
Following failed efforts to begin mediation proceedings, meanwhile, the government and Delaware North are back on a collision course in the claims court, located close to the White House. They are currently maneuvering over a government claim that Delaware North’s exaggerated assessment of its intellectual property was so egregious as to amount to a breach of contract.
“It would have been in (Delaware North’s) interest to present a grossly inflated valuation of the property at issue, to deter other prospective bidders and lock itself in as the successor concessioner,” Justice Department attorneys stated in their 28-page legal filing Tuesday.
At Delaware North’s request, the 2010 valuation report prepared for the company by CONSOR Intellectual Asset Management remains under seal, following a judge’s determination last year that its details “could be used to the advantage of DNCY’s competitors in the preparation of bids for future concession contracts.”
Instead, Delaware North’s attorneys have cited the CONSOR report’s overall conclusions to support their case for compensation.
“DNCY did not breach the contract and did nothing in bad faith,” the company stated in a court filing last month.
In its complaint, the company further argued that its “Yosemite-related trademarks are extremely valuable and enjoy extraordinary goodwill,” adding that this valuable sentiment is “distinct” from that associated with the park itself.
Based in La Jolla, Calif., CONSOR describes itself as a firm “dedicated to helping clients establish and build the value of their intellectual property and intangible asset base, while minimizing risk and uncertainty.” Last year, for instance, a CONSOR expert testified in a lawsuit brought by the professional wrestler Hulk Hogan against the Gawker website, over publication of a sex tape. The CONSOR expert estimated the sex tape increased Gawker’s value by $15 million; Gawker is now out of business after reaching a $31 million settlement with the wrestler.
Dornbusch Associates is based in Berkeley, and has worked for a variety of government agencies and environmental groups, at locations including Kings Canyon National Park and the Golden Gate National Recreation Area.
The two competing firms used several different analytical approaches in their Yosemite work.
The Dornbusch report states that CONSOR “effectively used the market approach” that looks at recent transactions involving comparable assets in similar markets. Dornbusch asserts that this leads to incorrect conclusions about the value of a brand name, because “at Yosemite, the concession does not operate in a competitive environment.”
The two companies also plugged some different numbers into formulae used in calculating future revenues, and made different assessments about how much names actually draw customers. CONSOR, for instance, estimated Yosemite visitors pay a premium for the annual holiday season Bracebridge Dinner, while Dornbusch countered that visitors would shell out just as much if it were renamed, say, the “Squire’s Dinner.”
A Dornbusch executive declined to comment Wednesday.