Can you trademark a casino? WYNN v. RESORTS WORLD

Can you trademark a casino? WYNN v. RESORTS WORLD

A trademark is traditionally thought of as a word, phrase or symbol that tells consumers who produced a product.  However, just about anything that signals the identifies the company that produced a product can be granted trademark protection.  The key to a trademark is, the association consumers make between a trademark and the products produced by the trademark owner.  Trademark law in the United States grants the original user of a trademark to exclude others from using a trademark to brand goods in a way that causes consumer confusion.  If a company uses a trademark, which was first used by another company, to brand goods in a way that causes consumer confusion that can be considered trademark infringement.  A trademark owner can file a lawsuit to stop trademark infringement with an injunction and to get monetary damages for trademark infringement which has occurred.

While trademarks are traditionally thought of as words or symbols, just about anything can be protected by trademark law.  If a building signals to consumers the identity of a seller of products or services, a building can be registered as a trademark.  The United States Trademark Manual of Examining Procedure provides that a three-dimensional configuration of a building may be registerable as a trademark, so long as it is used in such as way that it is or could be perceived as a trademark.  There are several court cases which hold that the look of the interior and exterior of a business may be protectable trade dress.  The most well known building trade dress case is Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992), was a United States Supreme Court case where the Court held that Two Pesos, Inc. infringed upon the trademark of Taco Cabana, Inc. by copying the design of their restaurants.

However, buildings that qualify for trademark protection are still subject to the limitations of trademark law.  Trademark law does not protect the functional aspects of a trademark, so if a trademark serves a functional purpose it cannot be protected as a trademark.

The limitation on the functional aspect of a trademarked building will be a key point in WYNN RESORTS HOLDINGS, LLC, v. RESORTS WORLD LAS VEGAS, LLC,  2:18-cv-02410 (D. Nev. 2018).  Wynn operates several casinos around the world, with its signature casinos in Las Vegas, Nevada.  The Wynn casinos are distinctive curved glass buildings with bronze glass and stripes between different floors.  Wynn registered the distinctive look of its casinos on January 9, 2007.  The registered trademark consists of trade dress consisting of a three-dimensional building with concave facade, a curved roofline sweeping up toward the left top corner when viewed from the front and the word “WYNN” in a stylized script in the top left corner.  Since adopting the trademark look, Wynn has continuously used this trademark design for its casino buildings.

The defendant in this case is a casino under construction across the street from the Wynn property in Las Vegas Nevada.  The Resort World casino has several tall curved buildings.  Recently construction workers started installing bronze colored glass panels on the Resort World buildings.  Wynn felt that the look of the Resort World Casino was so similar that it would cause consumers to confuse the two casinos and filed a trademark infringement lawsuit.

Wynn will have a difficult time proving its case.  While the lawsuit claims that the trademark look of the Wynn hotels is not functional, there appears to be evidence that light from bronze glass was chosen by Wynn because it makes people appear more attractive.  If that is the case, it would make bronze glass functional and not protectable by trademark law.  The bronze color shared by the two casinos is the main similarity between the buildings, if that is taken away it is difficult to show the buildings are confusingly similar.

If you have questions or comments for the authors of this blog please email us at: