AMERICA’S CUP MASTERS



America’s Cup Masters

The aim of the America’s Cup Masters is to promote and run a regatta or series of regattas, match races, fleet races or demonstrations that will connect the modern high technology America’s Cup with its’ heritage and traditions. We think it would be just great to have the heritage yachts sparring again at the America’s Cup venue and generally maintaining an active connection between the heritage yachts and yachtsmen and the modern America’s Cup. 

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AMERICA’S CUP MASTERS NEWS

And while you’re here why not take a look at the America’s Cup Masters News section for all the very latest updates about the failed attempt by the America’s Cup Event Authority and America’s Cup Properties Incorporated to take control of the America’s Cup Masters? Get a rare insight into the way that the secretive ACEA and ACPI legal teams operate. And if they’re hassling for money you can find out how you can put a stop to their arrogant, marauding and thoroughly obnoxious behaviour, pathetic threats of legal proceedings and associated demands for money.


Application Form TM26(O)




THE THINGS THEY SAY...

We would also like to inform you of the America’s Cup Event Authority’s (“ACEA”) and ACPI’s policies on unsolicited business proposals. By submitting any unsolicited business proposals, ideas, creative suggestions, notes, concepts, drawings or other information (collectively “Unsolicited Materials”) to ACEA and/or ACPI, you agree to assign to ACEA and ACPI and all rights of every nature and description, in perpetuity, throughout the world, in such Unsolicited Materials. The Unsolicited Materials shall be deemed, and shall remain, the sole property of ACEA and/or ACPI (as determined between them), and ACEA and/or ACPI shall (as determined between them) exclusively own all now- known and hereafter existing rights to the Unsolicited Materials for any purpose (commercial or otherwise).

Thank you.
Very truly yours, /James R. Menker/*

It appears that lawyers acting on behalf of America’s Cup Event Authority and America’s Cup Properties Incorporated attempted to appropriate the America’s Cup Masters intellectual property after they had failed to get an assignment by lawful means.

It would be interesting to know who gave the instruction to send this letter.

*James Menker is a shareholder in Holley & Menker the distinguished firm of US trade mark attorneys who provide a complete range of intellectual property services to major national and international organisations.

Holley & Menker’s very impressive international client list includes FIFA and the thoroughly obnoxious double act of ACEA and ACPI.

Holley & Menker were instructed by Sam Hollis Chief Operating Officer of  the America’s Cup Event Authority, Chief Executive Officer America’s Cup Properties Incorporated and legal counsel for the America’s Cup. Hollis is a sports lawyer specializing in the structure, marketing, sale and delivery of a full range of commercial rights in sport. He studied law at Oxford and was trained and qualified at Freshfields in London where he worked with the team that advised London 2012 on its bid to host the Olympics.

Application Form TM26(O) 



HAPPY BIRTHDAY AMERICA’S CUP

The trophy that is known today as the America’s Cup started life in 1851 as the Royal Yacht Squadron £100 Cup and was subsequently donated to the New York Yacht Club by means of a Deed of Gift dated 8th July 1857. At that time the United States Copyright Act permitted a maximum of 42 years copyright protection, corporate or individual, and so it would seem that any copyright that arose from the Deed of Gift would have expired by 9th July 1899 and Garrard’s own copyright for the design of the trophy would have expired by 1894. However, when the Club finally applied for a trade mark in 1976 it was claimed that the words America’s Cup had been in commercial use since 1871 which means copyright expired in 1914.


If the Club had intended to maintain exclusive right to the use of the words America’s Cup beyond 1914 it would have been sensible for them to have registered a trade mark before copyright ran out. So why might they have failed to register a trade mark before the expiry date given that the USPTO trade mark application claimed that the words America’s Cup had been in commercial use for over 105 years?


It seems probable that the Club did not attempt to register a trade mark for two reasons. Firstly, they almost certainly considered that the trophy was a sporting challenge not a common commercial property and secondly, that ownership of copyright in the words America’s Cup was not clear.


Indeed, it could be that the words America’s Cup were originally coined in the popular press or by a third party or simply arose in the general public consciousness rather than being the specific name given to the trophy by the Club. If that’s what happened they wouldn’t have owned any copyright in the words America’s Cup absent a legal assignment and that could be why they didn’t apply for the trade mark because if the words were already in common use the Club could not have got an assignment.


Interestingly, neither Deed of Gift nor the trophy refer to the America’s Cup. Indeed, the trophy itself simply refers to the fact that it that had been won by the yacht America and was engraved with the name of 100 Guinea Cup by the syndicate that had donated the trophy to the Club. So it would seem reasonable to assume that the trophy was called the 100 Guinea Cup.


In fact, all the races for the trophy were run as the Queen’s Cup until 1887 when the Club finally adopted the name America’s Cup.


That’s 30 years after the trophy had been donated to the Club and some 36 years after the original syndicate had won the RYS £100 Cup. And it’s also 16 years after the date claimed on the 1976 trade mark application.


The awkward facts for America’s Cup Event Authority and America’s Cup Properties Incorporated are that since at least 1881 the popular press had referred to the Queen’s Cup as the America Cup and by 1885 they were already referring to it as the America’s Cup. And so it would appear that by the time that the New York Yacht Club adopted the name America’s Cup  in 1887 they used a name that was already in the public domain.




Source: The Daily Alta, California 30th March 1885.


So who got there first?


Popular press, general public or General Butler who had not the honor to be a member of the New York Yacht Club?


It would appear from this inconvenient snippet that NYYC never owned any copyright in the words America’s Cup. It looks like General Butler was the first to name the America’s Cup with his exhortation to the NYYC to get off their collective backsides and put up a defender for the Queen’s Cup.


If copyright in the words America’s Cup belonged to General Butler, Union Army Civil War hero and 33rd Governor of Massachusetts, it would appear that copyright expired with him when he died in 1893.


No wonder NYYC didn’t bother to apply for a trade mark. The words were never their exclusive property and the 1976 trade mark is worth about as much as yesterday’s fish and chip paper.


In any event the words America’s Cup are currently in use with the sports of cycling, darts, football as in FIFA Copa América, golf, kung fu, motoring, fly fishing, roller skating, hockey, poker and taekwondo. And the same words are also used in sailing as the informal name for the Little Cup, the International C-class catamaran championship, that has been known as the Little America’s Cup by sailors and media for 54 years worldwide.


So it would appear that the name America’s Cup had become customary in the current language and the bona fide and established practices of the trade many years before the Club’s trade mark application.


Under the circumstances it would appear that the correct response to any correspondence from lawyers acting on behalf of either the America’s Cup Event Authority or America’s Cup Properties Incorporated that threatens to commence legal proceedings against you unless you agree to sign away all your intellectual property and pay a license fee, is not to be intimidated; simply remind the lawyers that it was not you who left the seacocks open and advise them to withdraw their groundless threats of legal proceedings or you will refer the matter to the Registrar of Trade Marks.


If the threat of legal proceedings persists an application can be made for a hearing under the provisions of Part 1 Section 21 of the Trade Marks Act 1994 or alternatively a request can be made for an investigation under the provisions of Part 1 Section 46 of the Trade Marks Act 1994.


Indeed, it appears the trade mark for the words America’s Cup may be at risk of revocation under the provisions of Part 1 Sections 5 and 47 of the Trade Marks Act 1994 on the grounds that it has never had, nor can it ever acquire a distinctive character.


We note that under the provisions of Part 3 Section 100 of the Trade Marks Act 1994 it states that: “if in any civil proceedings under this Act a question arises as to the use to which a registered trade mark has been put it is for the proprietor to show what use has been made of it”.


We also note with considerable amusement that you don’t actually have to have been threatened by lawyers in order to start an investigation into the trade mark for the words America’s Cup. Any citizen is entitled to apply for an investigation into the validity of the trade mark under the provisions of Part 1 Section 46 of the Trade Marks Act 1994 at any time without notice to America’s Cup Event Authority or America’s Cup Properties Incorporated.


And remember, just in case America’s Cup Event Authority, America’s Cup Properties Incorporated or any of their associates infringe your intellectual property you can apply to have the trade mark struck off by same process.


Application Form TM26(O)




America’s CUP: WHAT’S NEXT?

The America’s Cup Masters team have been working on a concept for the future of the America’s Cup, a concept that engages with high technology, heritage and speed that will transform the America’s Cup into the greatest sporting event in the world. So if you’d like know how to make the change it’s probably about time you contacted the America’s Cup Masters team. Read more




THE FLICA PROJECT

Flica is one of the most famous and successful racing yachts ever to have been built in England. The project to return her to the start line has been described by the Director of National Historic Ships as the most exciting and important maritime heritage project in the United Kingdom. Read more


THE FLICA TRUST

The Flica Trust will work with business and industry both to provide professional mentoring for young people and help them find the right career paths, training opportunities and long-term job placement that will enable them to enter the mainstream workforce as useful members of the community. Read more




AMERICA’S CUP TRIAL

The America’s Cup Trial is a competition for the world’s earliest motor cars. If you would like to enter a challenge your horseless carriage must have been manufactured in Great Britain before the end of 1899 and be propelled by a single cylinder gasoline engine with a maximum power of 3 horsepower. Read more




FOURTH REPUBLIC

After 75 years out in the cold the extraordinary Fourth Republic story has emerged from the shadows and is available to film production companies for development into a full length feature film. Read more

CONTACT US

If you would like to join the project team or discuss your ideas for the America’s Cup Masters, the Flica Project, the Flica Trust, America’s Cup Trial, Fourth Republic or the Emancipation Run we will be delighted to hear from you. Read more



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The contents of this website are copyright and should not be copied or transmitted by any means whatsoever without written permission of the copyright holder. All photographs are copyright of the Fairey Collection, the Goodson Collection, Beken of Cowes, the National Maritime Museum or R.A. Smith unless credited otherwise. Copyright © 2003-2017 R.A. Smith. All Rights Reserved.


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AMERICA’S CUP TRIAL™

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FOURTH REPUBLIC™

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THE EMANCIPATION RUN™

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VETERAN CAR REGISTER

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VETERAN CAR GUIDE

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James Menker

Holley & Menker

America’s Cup

America’sCup Event Authority

ACEA

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ACPI

Golden Gate Yacht Club

Russell Coutts

Larry Ellison

Oracle Team USA

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