V&T RRtrademark stuck in negotiation

Two different Virginia City business owners want the federal trademark to sell souvenirs for the famous Comstock-era railroad.

The parties are negotiating and, in the end, both of them could win, said Joe Curtis, one of the applicants and a bookstore owner in the small tourist community. He has a state corporation and state trademark for the name "Virginia & Truckee Railway."

"We're trying to figure out how to make it work so that we both have access to the same logo, but they use railroad and I use railway," Curtis said Monday.

The Gray family own and operate the Virginia & Truckee Railroad that runs from the historic mining town to Gold Hill, which is a two-mile trip down the hill. They've been making souvenirs for more than 30 years, but have never filed for a federal trademark.

Curtis beat them by about a month, said George Wasson, the Gray family's trademark attorney. He filed in mid-June a notice in of opposition to Curtis' application for his trademark. He alleges that "railway" is too close to their "railroad" and could confuse customers. The notice halted Curtis' registration of his mark.

When the $40 million tourism project is completed by 2010, the souvenir income could be substantial. The project is expected to bolster regional tourism by attracting more than 160,000 visitors a year.

Though he has never operated a railroad, Curtis has said that his family's intention has been to sell souvenirs in connection with the reconstructed rail line. He's used a mark, which is a drawing of the original corporate logo of the V&T Railroad, on some souvenirs that he has sold in his Mark Twain Bookstore in Virginia City. Curtis said he has not yet used it on T-shirts or cups, which is what his application specifies.

The Gray family has used the railroad name and the original logo for souvenirs since 1972, according to the notice of opposition filed with the U.S. Patent and Trademark Office.

If the railroad has been using the mark continuously to sell souvenirs, then it has rights superior to Curtis' application, said intellectual property attorney Lara Pearson. Legal battles over trademarks can be long and costly, she said.

"Under U.S. trademark law, the first one to use the mark wins," she said.

If Curtis wants to use it, he would have to renounce a legal claim to 'Virginia & Truckee' and to the logo, except as it appears on his proposed mark, Wasson said. Essentially, Curtis would have to admit that he doesn't have exclusive rights to either. An agreement must be reached by mid-September, or Curtis' application goes into default.

This decision will ultimately affect the Nevada Commission for the Reconstruction of the V&T Railway, which is building the 16-mile track from Gold Hill to Carson City using public and private funds.

Bob Hadfield, chairman of the commission, said the board is trying to juggle the acquisition of both real and intellectual property connected to the project. He's counting on the future rail operator to distinguish priorities for the reconstruction.

Rail operators have until today to submit their qualifications to a consultant working on the selection process. At a Sept. 11 commission meeting the board will decide which operators are eligible to submit a full proposal and business plan, which is due in October.

"(The operator) would probably have more success in creating agreements that are good for everybody," Hadfield said. "We're looking for a win-win for everybody. We don't want to be creating unhappy people to build this thing. We want people to say this is the best thing to happen in this region."

By Monday, three operators had submitted their qualifications for consideration: American Heritage, the V&T Railroad and Sierra Railroad, according to a consultant involved in the project.

• Contact reporter Becky Bosshart at bbosshart@nevadaappeal.com or 881-1212.