Aspen now officially 'defies ordinary' | Aspen Daily News Online

Aspen may ?defy ordinary? but it is no longer ?epic,? at least in the eyes of the U.S. Patent and Trademark Office.

The Aspen Chamber Resort Association on May 1 was issued the trademark ?Defy Ordinary,? a branding campaign rolled out last year.

ACRA applied for the trademark in September and registered the brand under the section of ?goods and services? to promote ?tourism in and around the Aspen, Colorado geographic area,? according to the USPTO, the patent and trademark office in Alexandria, Va.

The Aspen Skiing Co. has trademarked dozens of brands and slogans. A review of the list of trademarks that SkiCo has or did have on the USPTO website show some of the more colorful ones used over the years.

The USPTO trademarked ?Epic? under the goods-and-services class ?providing facilities for skiing and snowboarding? on May 29, 2008, but the SkiCo allowed it to expire. The USPTO registered it as abandoned on May 27, 2011.

Others dead on the USPTO website: ?The Mountain Town,? ?Come Live It,? ?Just Plain Fun,? ?The Difference is Night and Day,? ?Go Fast Take Chances? and ?Crazy T?Rain.? Those trademarks and others were used, or were going to be used, to sell goods and services, and to promote SkiCo?s four mountains.

A more recent filing made by the SkiCo was on April 30 to trademark ?Snowmass,? despite the fact that the ski area has been in operation since 1964.

Scott S. Havlick, a Denver-based attorney specializing in trademark law who represents SkiCo in that area, said the U.S. system allows for use of the word to trump registration by the USPTO. Because ?Snowmass? isn?t trademarked doesn?t mean it gives another entity permission to use it, based on the length of time Snowmass has been called that in common terms.

?The cool thing about the U.S. system is that as soon as you use it you have common law to have the rights,? he said.

Owning a trademark provides for another layer of protection, which is why ACRA sought to register ?defy ordinary.?

?We want to protect it and not have another resort use it,? said Julia Theisen, ACRA?s vice president of sales and marketing. ?We are investing a fair amount to that branding. ... We?re sticking with it for years to come.?

The brand will appear in ACRA?s marketing online, in print and other collateral, pitching the resort as something extraordinary.

Jill Teehan, an Aspen lawyer who specializes in trademark law, said a search on the USPTO website shows that ?defy ordinary? also is trademarked by a brewery in Washington. But because that use falls under ?goods and services? and not branding, it can be used by both entities.

Teehan said it?s important to register a trademark for a catchy brand or slogan, and to put it into use.

?If you sit on it, you can lose it,? she said.

Particularly with small businesses in Aspen, as well as with artists, authors and other entrepreneurs, trademarking intellectual property is paramount since the resort and its name has global reach on the Internet.

?In a global economy, even if you are a small business in Aspen, your brand could grow,? Teehan said. ?You?ve built value in your brand, and if it?s not trademarked, it could be lost.?

Once goods and services, or a brand, are trademarked, some companies ? typically large ones ? often hire outside agencies or set up search engines to monitor improper usage in media and other forums.

Such is the case with Steamboat Springs Ski Resort, which regularly sends cease-and-desist letters through its attorney to any entity that uses the term ?champagne powder.? It?s trademarked and was first used in commerce in 1968 to promote and brand Steamboat, according to the USPTO website.

And just last week, the Aspen Daily News received a letter from a Temecula, Calif.-based attorney asking the newspaper to stop using REVERSE 911? on behalf of is client, Cassidian Communications Inc. The company provides 911 call-handling solutions for emergency call centers, among other services for the public sector.

The letter refers to two recent opinion columns that used the term ?reverse 911? in the context of wildfire danger. The software allows the government?s communication center to call land lines to notify residents of imminent danger.

Tiffany Baughman, legal counsel for Cassidian, informed the Daily News that REVERSE 911? is trademarked and that the newspaper?s reference to it is ?generic misuse.?

?We object to any use of the REVERSE 911? trademark or marks confusingly similar other than in reference to the REVERSE 911? system of Cassidian Communications,? Baughman wrote in her April 30 letter. ?It is our position that any use of the REVERSE 911? system has the potential to confuse consumers and dilute the distinctiveness of the proprietary mark.?

Legal observers, however, said ?reverse 911? is such a common term that Cassidian would have difficulty in court protecting it as its own.

?Despite the fact that they have an incontestable registration, I think the [term] has been generic for too long of a time,? Havlick said.

Havlick and Teehan both said that on its face, it appears that ?reverse 911? is a descriptive term used by officials to inform the public about a process or system that could protect people in the case of an emergency.

?You could argue this trademark is too descriptive to qualify for trademark protection,? Teehan said, adding that trademark protection is meant for branding and marketing goods and services ? not a process.

Cassidian first filed for the trademark brand in 1993 and began using it in commerce in 1994. The USPTO granted the trademark registration in 1995 under ?goods and services? for an automated phone calling system comprised of computer hardware and software, and automated computer databases in the fields of demographics, geography, public safety, telephone numbers and addresses on magnetic media.

Pitkin County uses Cassidian for some of its communications center operations but not for the ?reverse 911? system. Mark Gamrut, Pitkin County communications director, recently used the term when addressing county commissioners and Aspen City Council about wildfire danger.

?I try to use an alternative ... it is challenging in our industry,? he said. ?What matters is getting the message out to the public.

?I think, to clarify for the public ... you have to [use the term.]?

sack@aspendailynews.com

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