Wednesday, May 11, 2011

Game of Kinetic Chicken (updated)

Posted by on Wed, May 11, 2011 at 11:24 AM

click to enlarge ART-hobart-brown-by-duane-flatmo.jpg
Humboldt County's annual Memorial Day event, known by locals as the Kinetic Sculpture Race, has been fraught with problems over the years, mostly revolving around the fact that the race itself has never had any built-in monetization. When he was alive "Glorious Founder" Hobart Brown spent a lot of time fundraising and ended up in some tangled business deals in order to keep the race going.

When he died he left behind a somewhat messy estate (see "Hobart's Children" Jan. 2009). Now his son, Justin Hobart Brown, is asserting his ownership of the name of the race and associated trademarks, including the oft-repeated phrase "For the Glory." Earlier this week, he served papers on Kinetic Universe Queen Monica Topping (see below).

Here is the latest salvo in the war over who controls Kinetics, a press release sent to us this morning by Justin Hobart Brown with the ominous subject line, "Kinetic race cancelled?"

Update: We just received the official response from Kinetic Universe. It follws the letter from Justin Brown.

Kinetic race may be cancelled due to lack of contract.

The Kinetic Sculpture Race owner Justin Hobart Brown is asking the community to assist him in ensuring the 43rd annual 3 day cross country race will go on. This last minute plea is after receiving a refusal from the Non Profit, Kinetic Universe to sign a new contract to organize and run the event.

The previous two-year contract expired in February of this year. Kinetic Universe -- presided over by Rutabaga Queen and President Monica Topping -- has rejected a contract for use of the trademarks that include the name Kinetic Sculpture Race, symbol the Kinetic Chicken, and the slogan "For the Glory". In addition Mr. Brown wished to add to the new contract, his receipt of copies of all records involved in the organization of the race including financial records, the right to approve changes made to the rules and race itself, notification of Kinetic Universe board meetings involving the race and the sum of [$]19.69 and four 2011 race t-shirts.

Applications for the "Kinetic Grand Championship" have already been posted to the mailing list and include new changes to the rules which include "all children 18 years and under must carry proof of age with them at all times," a result of age restrictions imposed by the new race organizers.

Justin Hobart Brown, heir to the race, disagrees with this policy, stating "My father never wanted to keep anyone from experiencing the Kinetic Race. I have been concerned about the direction the race has been going the last few years, and with the signing of a new contract looked forward to working with the Queens more closely to make sure my father's creation maintained its family friendly feeling"

Justin goes on to say, "The Queens have said they will run the race anyway, without a licensing agreement or contract, and will make changes to the name and the Kinetic Chicken and not use "For the Glory". They are asking me for proof of ownership and have said that the previous contract was quote 'a symbolic gesture of goodwill, and the board doesn't feel like that goodwill has come back to us,' unquote."

Racers or community sponsors should be aware Kinetic Universe has no contract to conduct business for the 2011 Kinetic Grand Championship at this time.

If enough volunteers come forward the race will go on as scheduled Memorial Weekend, May 28, 29 and 30th. Mr. Brown is in the process of seeking permits and insurance. The generous donation of [$]53.18 would be welcome to cover initial insurance costs. Additional support for permit fees and porta-potties would be greatly appreciated as well.

In the event that a contractual agreement is reached with Kinetic Universe before race day Mr. Brown promises all donations and volunteer information will be passed along for a seamless transition.

Justin would like to thank all of the volunteers who have worked to make the race happen in the past and hopes they will come and support his efforts to keep the 2011 Kinetic Sculpture Race from being cancelled. A volunteer sign up and information table will be on the Arcata Plaza during "Arts Arcata" Friday the 13th, 2011 from 6:00-9:00. Please help!

Justin Hobart Brown

And here's the above-mentioned cease-and-desist order delived to Monica Topping:

Kinetic Universe                                                                                 May 5, 2011

Attn: Monica Topping, President

PO Box 5065

Arcata, CA 95518

Re: Kinetic Sculpture Race, Kinetic Chicken, For the Glory Trademarks

Name and likeness of Hobart Brown, Kinetic Sculpture Race Rules, Rutabaga Queen name and Contest Copyrights

Dear Monica:

It has been brought to our attention that your business, Kinetic Universe, has been using the trademarks Kinetic Sculpture Race, Kinetic Chicken, For the Glory and Copyrights of the Name and Likeness of Hobart Brown, Kinetic Sculpture Race Rules and Rutabaga Queen name and contest in association with the marketing or sale of your products & services. It is possible that you were unaware of this conflict, so we believe that it is in our mutual interest to bring this matter to your attention.

Kinetic Sculpture Race is a registered trademark (U.S. Reg. No. 3013113) Kinetic Chicken is a registered trademark (U.S. Reg. No.3078558) of our business, Humboldt Kinetic Association, in the classes of IC 041. US 100 101 107. G & S, for the following services: Arranging and conducting a race of people powered vehicles. The Hobart Brown name and likeness, Kinetic Sculpture Race Rules (copyright 1990 Hobart Brown) and Rutabaga Queen name and contest (copyright 1998 KSR Inc) now owned by the Hobart Brown Trust, Trustee Justin Hobart Brown. (copies enclosed).

Our federal registration of these trademarks and copyright provides us with certain proprietary rights. This includes the right to restrict the use of the trademarks, or confusingly similar trademarks, in association with confusingly similar products or services.

It is important that we exercise our right to protect our trademarks. It serves as an important and distinctive representation of the origin of our products as well as the goodwill of our company.

State and federal law (Federal Trademark Act 15 U.S.C 1125 et seq) supports our position that confusingly similar trademarks may cause confusion among customers. This confusion may cause substantial harm to the trademarks by facilitating the loss of its effectiveness in establishing a distinct association between it, our products & services, and our company's goodwill.

Due to these concerns, and because unauthorized use of our federally registered trademarks amounts to an infringement of our trademark rights, we respectively request that you cease & desist in any further use of all above listed trademarks, copyrights and any confusingly similar representations thereof in association with the marketing, sale, distribution, or identification of your products, or services. To withdraw, cancel and/or delete any corporate names, domain names, trademark applications and/or trademark registrations for the above listed marks and copyrights.

Please respond by letter indicating your intention to cease & desist the use of and never in future to make use of the trademarks Kinetic Sculpture Race, Kinetic Chicken, For the Glory and the Copyrights of the Name and Likeness of Hobart Brown, Kinetic Sculpture Race Rules and Rutabaga Queen name and contest or any confusingly similar trademarks or copyrights without prior written authority from us whether within any corporate name, trading name, trading style, domain name or otherwise or return the enclosed contract with notarized signature authorizing use for the 2011 Kinetic Grand Championship by Tuesday May 10, 2011.

We hope that this issue may be resolved this way so we can avoid any further legal remedies as provided by state law and the U.S. Trademark Act.

Sincerely,

Justin Hobart Brown        2641 Union St Apt B Eureka, CA 95501

cc: Humboldt County Sheriff's Dept                          CalTrans- 1656 Union St, Eureka

      California Highway Patrol (Arcata)                         City of Arcata

      California Dept of Forestry (Fortuna)                     City of Eureka

      Bob Walsh, County Parks Division                         City of Ferndale

      Roads Division- Dept of Public Works             Arcata Ambulance

      City Ambulance of Eureka                         North Coast Rail Authority

       Kim Conrad, Northern Area Road Superintendent   New Belgian Ale

      Steve Finch, Southern Area Road Superintendent

      City of Eureka Police and Fire Department

      City of Arcata Police and Fire Department

      USCG Group/ Air Station Humboldt Bay

      Humboldt Bay Harbor Recreation and Conservation District

      Manila Community Center

      Ferndale Center for Community Services

 

Official response from Monica Topping, Queen of Kinetic Universe:

The Kinetic Grand Championship will go on this year!

No one owns the race. In 2007, while trademarked elements such as the name "Kinetic Sculpture Race," the slogan "For the Glory" and the Kinetic Chicken logo were tied up in litigation, and the former organizers were not going to be able to put together that year's race, the founding members of Kinetic Universe sat with the race's Glorious Founder Hobart Brown, on his couch, and he gave us his blessing to put on the race, which would not otherwise have happened that year. The race was renamed the Kinetic Grand Championship, we had a new logo created and we chose, sadly, not to use the slogan "For the Glory," lest we step on anyone's toes.

It is true that the board of Kinetic Universe has had a licensing agreement with Justin Brown for the last two years, for use of the three trademarked elements. That contract, which we were more than happy to sign, gave Kinetic Universe the ability to use the elements in trade for four t-shirts and $19.69 each year, symbolic of the first year the race ran down Ferndale's Main Street. 

Kinetic Universe was prepared to sign that same licensing agreement for this year, then we received a new agreement that included elements that Brown does not own, including the name and contest for "Rutabaga Queen," the rules, which have been adapted and changed many times over the years, and our organizational materials, which Kinetic Universe has created, from scratch, starting in 2007. Brown has neither the materials, nor the non-profit status to be able to organize the 2011 race with less than three weeks to go.

Kinetic Universe has made attempts to contact Justin Brown, and even contacted Humboldt Mediation Services earlier this week, in an attempt to come to some sort of agreement which would both appease Brown and allow Kinetic Universe to put its energy in this quickly shrinking time before the race toward finalizing the race, so that on Saturday of Memorial Day Weekend, when the noon siren blows, our racers will be able to jump into their machines and begin traversing the 42 miles throughout Humboldt County to the grand finish in Ferndale on Monday.

Thank you,

Monica Topping

Kinetic Universe

 

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Bob Doran

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