Friday, July 1, 2011

Kinetic Klash Kontinues

Posted By on Fri, Jul 1, 2011 at 10:07 AM

Memorial Day weekend may have come and gone, and with it our world famous Kinetic Race, but the Kinetic kontroversy that surfaced before and during the race just took another major turn.

As you may recall, a couple of weeks before race day, Justin Hobart Brown, son of the late "Glorious Founder" Hobart Brown, announced that he was taking over control of the race from Kinetic Universe, the group that has run the race since 2007, because he felt the organization did not have a proper contract for trademarks he'd inherited from his father. In his view, those trademarks mean he owns the race.  In response, KU President Monica Topping contended, "no one owns the race."

Come race time the issues were unresolved, but some sort of postponement was agreed upon, with the proviso that KU would meet with Brown after the race, but before the end of June.

Topping has since retired from KU. So Wednesday night, Kinetic Racer/Rutabaga Queen and new KU President Kati Texas and KU Secretary Suzanne Ross-Kohl sat down with Brown and a couple of his associates, Al and Alice Krause, to discuss the future of the Kinetic Sculpture Race (aka Kinetic Grand Championship), and the contract between Brown and the K-Universe.

It did not go well.

"Justin made the decision that he's going to go a different direction and not have a contract with Kinetic Universe to produce the event for next year," Al Krause said in a phone call Thursday morning.

Instead, Krause explained, the nonprofit Humboldt Kinetic Association will produce the race. At this point HKA consists only of three board members: Justin Brown and the Krauses. They hope to find help and support in the community.

"It's unfortunate that we won't be able to work with the Kinetic Queens," Justin Brown said in a subsequent call. "Basically their vision doesn't coincide with mine. I'm here to preserve my father's vision as best I can."

click to enlarge justin.jpg

Reached by phone (while riding her bicycle) Queen Kati Texas had a different story to tell: "Kinetic Universe fully intends to run the Kinetic Grand Championship Memorial Day weekend 2012," she declared unequivocally.

Regarding the meet with HKA she said, "Having exhausted our effort to include them in our plans for organizing the race, we're going to have to go ahead without them."

Texas elaborated, "We talked for about an hour on the record and didn't really reach any form of consensus. They started out by pointing out that there were certain things in the agreement we made before the race [they wanted changed], and if we weren't willing to concede those right off, they didn't really want to talk to us."

Points of contention include the scope of the trademarks that Brown claims he owns, but most important, said Texas, is whether Brown "gets to decide who runs the Kinetic Sculpture Race."

He claims he does.

"It didn't start out with us saying we want to run the race and you guys shouldn't," said Texas. "It started out with them wanting us to acknowledge that they have full ownership of the race. We were like, 'We're not sure that's possible.' Then it turned into this dogfight." Ultimately, said Texas, "We reached an impasse. We did not reach an agreement."

What's in store for next year? Two groups now claim they are going to run the race. It may take a Humboldt Kinetic Association v Kinetic Universe lawsuit to settle who will be in charge.

click to enlarge kati.jpg

If the name "Humboldt Kinetic Association" sounds familiar it's because that was one of the groups that formerly ran the race, and also one of several entities sued by Hobart Brown.

After years of struggling to keep the race going, a process that often involved maxing out his credit cards and borrowing from friends, in 2001 Hobart sold the race he'd founded in 1969 to a group of nonprofits dubbed the Humboldt Kinetic Association. The price: $84,000, to be paid in installments.

Eventually HKA realized the race was not designed with monetization in mind -- it never actually turned a profit. With no money coming in beyond what was spent running the race, HKA stopped paying Hobart. In Nov. 2005 Brown filed Brown v. Humboldt Kinetic Association to reclaim ownership of the name "Kinetic Sculpture Race" and associated trademarks including the Kinetic Chicken.

The suit was finally resolved in 2007 when Brown repaid money received, but by then Hobart was embroiled in another legal battle, this time involving loans from his former friend Richard Fergison. Again there was some question regarding claims on ownership of the trademarks.

Since the race had to go on, with Hobart's blessing, Rutabaga Queens Harmony Groves and Shaye Harty formed Kinetic Universe to run the 2007 race.

"The Kinetic Universe was created as this clean entity with no ties to the legal mess," said Texas. KU switched its totem animal to a phoenix instead of Brown's Kinetic Chicken and altered the name of the race, calling it the Kinetic Grand Championship instead of the Kinetic Sculpture Race.

After Hobart died in the winter of 2007, Charlie Jordan, who was involved in HKA, signed the organization over to Justin as trustee for Hobart's estate. According to Brown, the various race trademarks are still technically owned by HKA.

The current dispute revolves around the various trademarks and what they mean. "I knew they were going to question the ownership of those six things," said Justin.

The six trademarks: The name Kinetic Sculpture Race, the Kinetic Chicken logo, Hobart's catchphrase, "For the Glory," the Kinetic Race rules (copyrighted, says Justin), the Rutabaga Queen as part of the race, and "The last thing is my dad's name, Hobart Brown, and his image," said Justin.

Whether or not Hobart came up with the idea for the Rutabaga Queen is one bone of contention for KU, since key board members, including Texas, are Queens.

But more crucial issues are control of the rules and the question of how much the name Kinetic Sculpture Race means.

According to Justin, Kinetic Sculpture Race is not just a trademark; it's also a service mark. In his view, ownership of the service mark means he owns the race itself. "The service is arranging and conducting a race by people-powered vehicles," he said quoting from patent office records.

Since KU doesn't acknowledge his ownership of the race and whatever control comes with it, he says he has decided not to work with them at all.

Overall, he said he feels frustrated that KU has not listened to him. A particular sticking point during the 2011 race was the question of age limits. Under rules enforced this year, Al and Alice Krause's daughter Sara was deemed too young to pilot their machine, Tiger and Amazons. She ended up racing anyway, but not "legally" according to the KU crew. Judges said they were disqualified because the girls had not paid their registration fee. The Krauses contend otherwise.

"There's a spin they're putting on the thing that's just not true," said Alice Krause, pointing out that other teams of high school students raced without opposition. She noted that her daughter Tess aced the course when she was 16. While KU says the age rule has been in place since they took over the race, Alice said, "It's always been overlooked; it was never enforced." But this year, she added, Topping would not allow the Krause girls to register. "It's really a minor detail," said Alice, who had figured out a way to get the girls' machine into the race. "The girls ended up behaving more like adults than some of the race officials they encountered."

"That whole thing seemed very personal and unprecedented," said Brown. "My dad always talked about the age thing; it was all about inspiring kids so they'd feel proud and have something to do. That was at the core of his belief about the race. The age thing was embarrassing. The liability insurance thing wasn't the problem, that was a decision they'd made. There was no dialog about it. They just decided that was how it would be. And they shut me out."

Feelings were hurt and things did not get better Wednesday.

"We tried hard to figure out a way to get them to participate in the process, but we couldn't," said Texas. "Justin wants to have his say, and Al and Alice don't want historical knowledge to be lost. Those are both really valuable things, but they also want us to sign [papers showing] that they own the race and have rights to the race. In my opinion that would make Kinetic Universe responsible for something we don't have control over... . Part of that is being liable, having good insurance coverage, having rules that allow you to have good insurance coverage."

Texas says KU is willing to work with Justin, but not on his terms.

"Why can't they work with us as collaborators and work to try to change what they don't like instead of trying to smash our organization and eliminate us as competitors. You know we're not making money in this; it's just a lot of hard work. Just throwing away all we've done seems counterproductive. It's just not good for Kinetics."

With all that in mind, Texas and Kinetic Universe are ready to continue working toward the Kinetic Grand Championship for 2012, without Brown.

"It's a shame they're going to move forward that way, but it's not unexpected," said Brown, who seemed slightly surprised to hear of KU's resolve.

Will he sue them to stop them? "Absolutely. We're ready to protect my father's legacy, what he left to his family, and to everybody. He wanted us to continue his vision. We'll do whatever it takes."

Does Justin think he's up to the task of running Kinetics 2012? "The race had been put on by many different groups," he said. "It's not easy and it's not something I've done myself, but we have people ready to do it."

All involved are sure of one thing: Kinetic Sculptures will show up on Memorial Day weekend 2012, and there will be a glorious race. But getting there may prove messy.

 

addendum:

A few Kinetic trademarks from a search of United States Patent and Trademark Office records:

 

Word Mark         KINETIC SCULPTURE RACE

Goods and Services         (ABANDONED) IC 041. US 107. G & S: ORGANIZING AND EXCECUTING HUMAN POWERED MACHINE RACES. FIRST USE: 19690500. FIRST USE IN COMMERCE: 19690500

Mark Drawing Code (1) TYPED DRAWING

Serial Number         73360588

Filing Date         April 19, 1982

Current Filing Basis         1A

Original Filing Basis         1A

Owner         (APPLICANT) GREAT ARCATA TO FERNDALE CROSS COUNTRY KINETIC SCULPTURE RACE AND ETC., THE CORPORATION CALIFORNIA ETC., LTD. 393 MAIN ST. FERDALE CALIFORNIA 95536

Type of Mark         SERVICE MARK

Register         PRINCIPAL

Live/Dead Indicator         DEAD

Abandonment Date         March 2, 1983

- renewed later -

Word Mark         KINETIC SCULPTURE RACE

Goods and Services         IC 041. US 100 101 107. G & S: Arranging and conducting a race of people-powered vehicles. FIRST USE: 19690500. FIRST USE IN COMMERCE: 19690500

Standard Characters Claimed    

Mark Drawing Code (4) STANDARD CHARACTER MARK

Serial Number         78384761

Filing Date         March 15, 2004

Current Filing Basis         1A

Original Filing Basis         1A

Published for Opposition June 28, 2005

Registration Number         3013113

Registration Date         November 8, 2005

Owner         (REGISTRANT) HE Humboldt Kinetic Association CORPORATION CALIFORNIA P.O. Box 4227 Arcata CALIFORNIA 95518

(LAST LISTED OWNER) HOBART BROWN, TRUSTEE OF THE HOBART BROWN LIVING TRUST DATED JANUARY 31, 2007 TRUST CALIFORNIA 393 MAIN STREET FORTUNA CALIFORNIA 95540

Assignment Recorded         ASSIGNMENT RECORDED

Attorney of Record         Noel M. Cook, Esq.

Disclaimer         NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE RACE APART FROM THE MARK AS SHOWN

Type of Mark         SERVICE MARK

Register         PRINCIPAL-2(F)-IN PART

Live/Dead Indicator         LIVE

Distinctiveness Limitation Statement         as to KINETIC SCULPTURE

- recently filed -

Word Mark RUTABAGA QUEEN

Goods and Services         IC 041. US 100 101 107. G & S: Entertainment services, namely, conducting contests; Arranging of beauty contests; Entertainment services, namely, a kick-off event for the "Kinetic Sculpture Race"; Entertainment services in the nature of conducting a humorous parody of a beauty pageant whereby the winner presides as the spokesperson for following year's "Kinetic Sculpture Race"; Entertainment services, namely, live performances or appearances by an entertainer. FIRST USE: 19850101. FIRST USE IN COMMERCE: 19980401

Standard Characters Claimed    

Mark Drawing Code (4) STANDARD CHARACTER MARK

Serial Number         85321796

Filing Date         May 16, 2011

Current Filing Basis         1A

Original Filing Basis         1A

Owner         (APPLICANT) Brown, Justin INDIVIDUAL UNITED STATES 2641 Union St Apt B Eureka CALIFORNIA 95501

Attorney of Record         Raj Abhyanker

Type of Mark         SERVICE MARK

Register         PRINCIPAL

Live/Dead Indicator         LIVE

 

 

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Bob Doran

Bob Doran

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Freelance photographer and writer, Arts and Entertainment editor from 1997 to 2013.

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