October 6, 2006
Dear Mayor, Board of Aldermen & City Administrator:
As you will recall, you were recently advised of the law firm of Lathrop & Gage’s recommendation to protect the name Branson as you have already done in the in the past concerning Branson Landing. The media has recently reported on the City’s enforcement efforts and this letter is being provided as a summation and reminder of why the City has taken this action.
The City owns the registered trademark for BRANSON, MISSOURI for use with municipal services. Additionally, "Branson, Missouri" and "Branson" are used by the City to identify itself as the source of municipal services. The City has spent considerable sums of money advertising and promoting itself as an entertainment destination, as well as a great place to live and work, to prospective residents, businesses, and tourists.
Branson pays for these promotions and the general infrastructure of the city from taxes it collects from businesses located within the City limits, many of which appropriately use the name "Branson" as part of their business name. Because businesses located in Branson pay property taxes, collect and remit sales taxes and are required to obtain business licenses in order to operate within the City, the City in turn believes that is fair, reasonable and correct to protect the interests of those businesses from competition outside the city limits that promote themselves as a Branson business.
Equally important in taking this action is consideration of the consuming public, such as tourists, who support Branson businesses. It is unfair and improper for a business that is not located in Branson to possibly mislead the public by proclaiming that it is in the City and thereby subject to the various regulatory ordinances enacted by the Branson Board of Aldermen for the purpose of providing consumer protection.
Such misrepresentations damage the City in several ways. Disappointed consumers or purchasers of goods or services outside the City may attribute such dissatisfaction to the City and other businesses located in the City. Potential new businesses may be discouraged from locating within the city limits when businesses not located within the city limits are permitted to use the name Branson, and the potential marketing advantages that the name may provide, without having to pay City taxes or be subject to Branson ordinances.
Finally, the value of the City’s trademark interests diminish through unrestricted use of those marks and the City’s reputation and goodwill associated with its marks is jeopardized by such use. While the City plans to restrict future use of the Branson marks by businesses not located in the City, it will not likely attempt to limit prior use where such use has been in effect for more than 24 months. Further, extraterritorial businesses will be allowed to use Branson in their business name upon compliance with restrictions and requirements established by the City.
As briefly mentioned above, the background for enforcement of the use of the name Branson derives from enforcement of Branson Landing. The City of Branson engaged outside legal counsel, Lathrop & Gage, to research and assist in the enforcement against unauthorized use of the name Branson Landing. The research was presented to the Branson Board of Aldermen resulting in a vote to proceed with enforcement and litigation and culminating in the City filling lawsuits and ultimately prevailing against businesses located outside the boundaries of the Branson Landing development that were using Branson Landing to promote their businesses.
During the course of enforcing the City’s rights in the Branson Landing marks, it became apparent to the City’s outside legal counsel that similar enforcement ofthe Branson name is appropriate and necessary. Accordingly, the City ofBranson continued working with outside legal counsel Lathrop & Gage to assist and protect the City’s interest in the name Branson as allowed and provided under both the Lanham Act and the common law of Missouri. As a result, the Branson Board of Aldermen directed that the necessary action should be taken to protect the use ofthe Branson name. Due to the fact that the Branson Sports Club was beginning, or near the beginning of construction, the City of Branson issued a warning to Branson Sports Club stating that the use ofthe name Branson is not permissible. However, due to the immediate proximity to the Branson City Limits, the sports club was advised that providing a consent to annex, even if they were never annexed by the city, would allow them to use the name Branson. Also, it is not believed that if they did change their name that such a change would in any way alter the services that they will provide. Additionally, the change in name does not require legal expense as has been portrayed and is as simple as completing the Articles of Amendment for a Nonprofit Corporation form from the Secretary of State’s web page and submitting a $10fee. Letters have or are being sent to other businesses outside the city limits that are currently using the name Branson and which have not used that name for more than 24 months. Those businesses are being advised that such use is not permissible unless approved by the City.
Sincerely,
Paul D. Link
City Attorney
Retyped from PDF formatted copy of the letter by the Ole Seagull on Oct. 6, 2006