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“DAVID vs. GOLIATH”
A SMALL CALIFORNIA BUSINESS AGAINST THE GIANT DISNEY EMPIRE
The legendary tale of “David vs. Goliath” has inspired countless “little guys” to take on the world “giants.” Today many small businesses must contend with the business “Goliaths” who have more money, more influence and more lawyers. These business “Davids” must stand firm, and hold their ground, or risk extinction. In this updated version of that classic battle, “David” is a little-known California company called “Let the Memories Begin photo booths” versus a well-know “Goliath”, “Disney.”
By now, anyone with a television or computer has either seen or heard Disney’s new park promotion to help celebrate Walt Disney World’s 40th Anniversary in 2011. It’s called, ‘Let the Memories Begin’ and designed to put park guests in the spotlight; and hopefully bring more of them into the parks. The promotion features snapshots and home videos of real guests during their stays at a Disney park. “A Disney vacation is the perfect way to create family memories that will last a lifetime,” said Tom Staggs, chairman of Walt Disney Parks and Resorts. “We’ll spotlight those ‘only-at-Disney’ moments with family and friends during our ‘Let the Memories Begin’ campaign.”
Fans simply submit their video and photo Disney “memories” on its website and Facebook for possible use in TV and online campaigns. TV ad spots currently appear on several networks including CBS, ABC and Animal Planet. Print ads are scheduled to run November/December issues of People, Martha Stewart Living, Real Simple and Parents, and others.
Beginning this January, Park photographers at Disneyland and Disney World will take “candid snapshots” of guests during their “Disney experience.” Each night, a nighttime show will use a new 3-D technology to project up to 500 of these photos onto park structures. Disney even commissioned a new song to provide an emotional framework for these “Disney guest experience” images.
“We wanted to give our guests a powerful way to share the memories they create every day in our parks,” Staggs said. “A day at a Disney park is filled with magical experiences that become cherished and unforgettable memories – and now we’re helping our guests share those memories with the world.”
Before unveiling its newest campaign, Disney commissioned a survey of U.S. and Canadian families about their vacation experiences. The survey “revealed” vacation memories hold a special place in family history. The survey “discovered” 9 out of 10 parents plan their vacations with the express hope they result in a lasting family memory. Nearly three-quarters “reported” they “often” or “very often” thought about favorite vacation experiences.
Everyone seems excited about Disney’s new campaign; everyone except the small company whose business name and catchphrase Disney is using without its consent or compensation. Disney’s centerpiece catchphrase, “Let the Memories Begin” is not a Disney “original.” It was originally created the company that bears the same name, “Let the Memories Begin” (“LMB”) photo booth rentals LMB is part of “Let the Games Begin Amusements, LLC” an arcade and interactive amusement game and jukebox provider based in northern California. For almost three years, LMB has promoted its photo booth service using its truly unique name. The distinctive moniker, “Let the Memories Begin” was intentionally created and is central to its own advertising campaign to “capture quality once-in-a-lifetime ‘photographic memories’ at weddings, graduations, birthdays, anniversaries, reunions, and others.” LMB has invested considerable time and money using this catchphrase to promote its business online, in print, at trade shows, and on television. LMB had plans to expand its business nationally using the “Let the Memories Begin” brand name. Unfortunately for LMB, Disney comes along and just takes it; without notification, consultation, permission, or compensation.
Before launching its newest campaign, Disney lawyers were busy conspiring to acquire LMB’s unique catchphrase and registered domain name, “LettheMemoriesBegin.com.” On July 9, 2010, Disney lawyers filed an application with the U.S. Patent & Trademark Office seeking to register a “service mark” on the phrase “Let the Memories Begin.” If granted, Disney would secure the right to forbid other businesses, including LMB, from using this mark to advertise their services. Disney hopes it becomes another classic like “the happiest place on earth.”
Next they hired an online domain registrar and consulting firm, “Domainconcerns.com” as its “anonymous broker” to acquire LMB’s domain at a lower cost. After spending millions to create and run this “groundbreaking” new campaign, Disney apparently wanted to save a few bucks instead of negotiating openly and directly with LMB.
The anonymous broker contacted LMB for the first time on August 7, 2010, and presented Disney’s initial offer. LMB replied it had no interest to sell its domain and name and rejected the offer, but the broker representative was persistent; he suggested LMB reconsider and present a counteroffer. After careful consideration, LMB acquiesced and began negotiations with the broker to sell its domain name. During negotiations, LMB learned of Disney’s service mark application with the U.S. Patent Office. As such, LMB believed either Disney had hired this “broker” to acquire its domain, or the broker was attempting to buy and resell it to Disney for a profit. Either way, LMB needed to clarify Disney’s involvement before it negotiated further.
LMB contacted the broker and the Disney attorney who had filed the service mark application to verify whether Disney was the intend buyer of the domain. While LMB waited for the verification, the broker continued to submit additional offers; but no Disney authorization ever came. When LMB insisted Disney provide notification that it was the party actually attempting to acquire the domain, negotiations ended abruptly without a sale. Disney later claimed the attempted acquisition was for “vanity purposes.” When their anonymous broker was “unable to close the deal”, they “decided to go into a different direction.” Apparently that direction involved using LMB’s original name and slogan without notification, consultation, permission, or compensation.
Disney has since ignored LMB’s written “cease and desist” demand and continues promoting its new advertising campaign using LMB’s business name and catchphrase. Consequently, LMB filed a “letter of protest” with the U.S. Patent & Trademark Office opposing Disney’s service mark application, and plans to file a civil lawsuit against Disney for injunctive and monetary relief. Let’s hope this “David vs. Goliath” story ends like the classic original with the “little guy” defeating the “Giant.”
Steve Fiegel, Esq.
Let the Games Begin Amusements, LLC dba,
Let the Memories Begin Photo Booths