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Park Law


Investing in assets you can’t ride


Heather M. Eichenbaum, Esquire on why you should protect your Intellectual Property (IP)


Heather M. Eichenbaum is an Executive Committee Member with Spector Gadon Rosen Vinci P.C., practicing in Pennsylvania, New Jersey, and New York. She concentrates her practice in the representation of amusement, sports, hospitality, and recreation venues. Legal counsel to, and a Board Member of, NAARSO, she is also a member of the NJAA, IAAPA, OABA, and IISF.


I


t should seem obvious that you can’t just copy the design of rides or other attractions from Disneyworld or Universal Studios. Their attorneys would, rightfully so,


shut you down faster than a ride on your favorite coaster. But every creator of a unique amusement or


attraction can get the same legal protection for any new rides, attractions, or games that it may have created. That is the potential return on an investment in “IP” – “intellectual property” rights to “knowledge assets”, such as patents, trademarks, copyrights and trade secrets. With IP, you can prevent someone who copies your ride or park concept (an “infringer”), if the copy is “confusingly similar” to what you created, from continuing use or sale of that product. Your legal counsel can send a “cease and desist”


letter, to demand that the copycat immediately stop using your IP, and pay you any profi ts it made from use of your ideas. However, litigation takes time, and provides no guarantees – which the infringers certainly know – so a letter alone may not convince an infringer to stop. Just as with accident lawsuits, however, a demand from a fi rm known in the business will show that your IP claim is serious. Understandably, ride or park owners may be reluctant


to spend money to protect IP rights. Not only does protecting IP require paying upfront for registration, but it’s also not always inexpensive to use those registrations against an infringer. After IP owners have gone to the trouble and expense of registering their IP, they are often


AUTUMN PART 1 2020


surprised to learn that no “IP police” exist to fi nd and stop the copycats. Another common argument against investment in protecting amusement IP is that owners don’t actually need an additional layer of protection, beyond the “natural” barriers to entry: the cost of the ride manufacturing and promotion or sale of it. Yet if potential infringers are already in the business, and decide to compete against you by stealing your IP, their costs will be small relative to the potential profi ts they stand to make off your idea. So why spend money on legal protection of IP when


it is not an inexpensive proposition and business reality may be a natural and formidable barrier to unfair competition from an infringer? The fact is that infringers do exist – a lot of them – and


they will try to steal your ideas. Assuming you want to retain the one-of-a-kind nature of your unique ideas (or yourself make profi t from allowing the duplication of your idea for others), the surest way to do so is through IP registration. So the real questions are not whether you will have to spend money to protect your business, but when, and how much it will cost you? Once you realise that you must sue to protect your


idea or design, you will quickly learn that you will have to pay cash legal fees to do so – insurance won’t cover such litigation if you are not defending a claim. Because you must pay out of pocket for your lawyer, you should also understand that it will almost certainly cost less – a


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