The Importance of Protecting Your Hotel's IP Portfolio
By Dana Kravetz Managing Partner, Michelman & Robinson, LLP | January 19, 2020
This article was co-authored by Taylor Foss, Attorney, Michelman & Robinson, LLP
Las Vegas is regarded as the "Boxing Capital of the World," where, over the years, champs like Floyd Mayweather Jr., Manny Pacquiao, Evander Holyfield and the one-and-only Mike Tyson have climbed through the ropes and into the ring. Marquee bouts featuring fighters such as these continue to translate to big business for Sin City's hotels and casinos, but they're not the only rumbles that pique the interest of hoteliers there.
Recently, Las Vegas was the scene of another remarkable fight-one between heavyweights Wynn Resorts Holdings, LLC and Resorts World Las Vegas LLC-that shined a light on how important it is for hotel brands to protect their intellectual property, in Nevada and beyond.
In late December 2018, Wynn Resorts filed suit against Resorts World for copyright infringement and trademark dilution, among other things, a case arising from a $4.3 billion property Resorts World is building across the street from the Wynn Las Vegas. In its federal court complaint, Wynn Resorts contended that the architectural design of the neighboring Resorts World Las Vegas hotel and casino was substantially similar to Wynn's signature exterior motif, its hallmark being a concave façade with curved bronze glass and cream-colored banding.
According to the lawsuit, this similarity-which was likely to cause confusion or deceive the public into thinking that the Resorts World project is actually a Wynn property-was a violation of Wynn's registered copyrighted architectural work, as well as its registered and common law trade dress. The allegation packed a punch-the parties settled the litigation early last year, with Resorts World agreeing to make several changes to its design in order to clearly differentiate it from the Wynn and adjacent Encore Resort, a sister property.
It may come as a surprise to some, but the design of a building can in fact be copyrighted as an architectural work. And a trade dress claim-trade dress being the extension of trademark law into the visual appearance of a product that still indicates its source-can be initiated when consumers associate a design exclusively with a particular brand, and that design is used by another entity in its own building that serves a similar purpose.
Translation: to the extent the look of the Resorts World Las Vegas-currently under construction-might've left potential guests with the impression that the hotel and casino was a Wynn-branded property, liability for copyright or even trade dress infringement could've attached.