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Pour VAIL

With all the sympathy recently being enjoyed by VAIL as a result of the apparent torching of four of its mountain-top facilities, it is easy to forget what a 900-pound gorilla the corporate snow park really is. Already the largest ski resort on the continent, VAIL is eager to add another 800-odd acres to its domain. But forget how much lynx habitat it might be leveling in the process--the best place to find evidence of the resort's ubiquitous reach into Colorado is in its name.

Consider the company's still-pending lawsuit against liquor-maker Joseph Seagram & Sons for a series of Absolut Vodka magazine ads published last December. The ads, which ran in a half-dozen magazines, showed the vodka's distinctive bottle wrapped in a plaster cast; the words "ABSOLUT VAIL" ran underneath.

The Absolut Vodka campaign, begun seventeen years ago, has become a phenomenon that transcends the potato-based Swedish liquor. Since its creation in 1981 by a New York adman musing in a bathtub, the campaign has produced more than 500 "ever-changing, never-changing" print ads. Each shows the vodka bottle in a different setting or with props that evoke humor or irony.

The strategy has made Absolut one of the best-selling liquors in the world. Along the way, the ads themselves have gained a huge following. The Internet hosts numerous collector Web sites, as well as an online newsletter dedicated to the images. Over the years, the company has pushed the boundaries of exposure. Andy Warhol was commissioned to paint a bottle. A Kansas wheat farmer was paid to harvest his crop in the shape of a giant Absolut Vodka bottle. A clothing line was begun. More recently, the ad company, TBWA Chiat/Day, has contracted with some of the world's most popular authors, including John Irving, Dominick Dunne and Mordicai Richler, to write stories for new Absolut ads. (Naturally, vodka is a central character in all.)

Various lawyers and representatives for the company decline to comment on the campaign, but it appears as though none of the images--many of which have included cities and places--presented a trademark problem until the ABSOLUT VAIL ad. The ad was scheduled to run over the Christmas season last year in a handful of national publications. On December 24, Chiat/Day informed VAIL of the impending exposure.

VAIL's response was immediate. On December 30, its attorneys fired off a letter to Absolut's PR firm. VAIL's attorneys wrote that the ads "constitute unfair competition," that they were "injurious and defaming to its reputation" and that they "disparage and dilute its world-famous trademark."

Because of the holiday, however, the liquor-company lawyers weren't able to get through to their clients to inform them of the legal threat, and the ads ran anyway. Although Absolut agreed not to publish the ads in the future, VAIL sued anyway, on January 8, in U.S. District Court in Denver. The suit meandered through the summer; a settlement meeting is scheduled for next month.

In the lawsuit, VAIL registered a twofold complaint. The first was that the ad besmirched the image of the ski resort--which, according to VAIL, "serves a high-end clientele and projects an image of wealth and sophistication"--and that it unfairly implied VAIL was somehow encouraging drunken skiing. Timing was clearly an issue: Sonny Bono and Michael Kennedy had both recently been killed skiing on Colorado slopes.

"The advertisement was in bad taste," the lawsuit gripes, "for it capitalized on the injuries or deaths of innocent members of the public; the purpose was to sell liquor."

The second charge was simply that Absolut had appropriated the VAIL name and distinctive typestyle (all capital letters). Since VAIL had trademarked the name and since Absolut had not gained permission to use it, VAIL contended that this was a violation of trademark laws.

"We are pursuing the lawsuit," says Glenn Beaton, VAIL's attorney, who declines any further comment. In the meantime, though, the lawsuit has inadvertently raised several issues about the ski business in Colorado. The most obvious is the largely unspoken alliance between skiing and alcohol.

In its lawsuit, VAIL takes great offense at the association of vodka and skiing. "Skiing and intoxication do not mix," the suit huffs. "There is nothing funny about skiing accidents or injuries."

Yet a scan of the resort's media guide indicates that not only has VAIL expended the time and effort to designate "the official premium cordial of VAIL Resorts" (it's Bailey's Irish Cream) and "the official malt beverage of VAIL Resorts" (Coors), but the mountain is covered with booze. This February, for example, VAIL will have the honor of hosting the World Alpine Ski Championships--sponsored in part by Carlsberg Beer. In March the mountain hosts "Weinhard's Mogul Mania," named after its sponsor, the Oregon brewing company.

 

And that doesn't even take into account VAIL's numerous mid-mountain and peak restaurants that serve alcohol. Because there's no other way to get down the mountain, skiers who decide to have a drink or two during lunch have no choice but to drink and ski. Nor does it consider the less-official events that occur on the resort's slopes, such as the Grand Marnier Chefs Race and the Bartenders Cup. Or the annual year-end, mid-slope kegger considered by locals to be one of the best--and drunkest--parties of the year.

The lawsuit also highlights a unique skiing phenomenon: the faux Swiss/Colorado village. VAIL owns four ski resorts in the state: VAIL, Beaver Creek, Breckenridge and Keystone. What each shares is a simulated town or village that is nothing more than an appendage of the resort. Thus, even though Vail is also a real-life town with a real-life mayor, VAIL can make the straight-faced claim that when the words ABSOLUT VAIL appeared in print, they could only be referring to one of the two places.

Even the real-life mayor concedes its conundrum. "We're like a company town--like Hershey, Pennsylvania," admits Rob Ford. "Obviously, we're here. But the town couldn't exist without the ski area."

Still, he adds, there are twists. For example, while it's true that the town of Vail (est. 1966) took its name from the VAIL ski resort (est. 1962), it is indisputable that VAIL appropriated its name from Vail Pass, so named in 1939 for Charles Vail, chief engineer for the Colorado Highway Department.

Similarly, Beaver Creek Resort (est. 1980) opened before the Village Hall (est. 1982) ever did--but well after the waterway running into the Eagle River was called Beaver Creek.

Richard Cuny was one of the first to stumble over the blurred lines in the complex distinctions between resort and geography. Cuny is the owner of Beaver Liquors, an establishment painstakingly named for its multiple allusions to place and foreplay. In 1980, soon after Beaver Creek opened, VAIL took offense at the explicit T-shirts Cuny was hawking out of his Avon liquor store. So it sued, claiming exclusive rights to the place name Beaver Creek and further claiming that Cuny's lewd double entendres didn't deserve association with such a "world-class" resort.

Cuny won, but only temporarily. VAIL sued again in 1989 for similar reasons. This time Cuny backed down. "You start thinking, 'Do I have $100,000 to dedicate to this, or should I give up?'" he remembers. Adds his attorney, Tim Martin, who compares VAIL's intensive name-claiming to that of another corporate giant, Disney: "It was a classic case of a big, aggressive entity squishing an individual."

In fact, in 1987, in the legal equivalent of an Old West roundup, VAIL simultaneously filed more than 100 trademark applications with the Colorado Secretary of State's office. The blizzard of paperwork effectively tied up every possible permutation of the Beaver Creek name, including: "Beaver Creek Vacation Resort," "Beaver Creek Ski Resort," "Beaver Creek Skiing Corp.," "Vail-Avon Company," "Avon-Vail Company," "Beaver Creek-Vail Company," "Vail-Beaver Creek Company."

VAIL didn't stop there, either. It also attempted to secure rights to every conceivable establishment that might someday bear the Beaver Creek name: "Beaver Creek Antiques," "Beaver Creek Art," "Beaver Creek Backpacking," "Beaver Creek Bakery," "Beaver Creek Barbers," "Beaver Creek Book and Poster Shop," "Beaver Creek Book Store," "Beaver Creek Book Store and Office Supply," "Beaver Creek Cable TV," "Beaver Creek Communications," "Beaver Creek Clothing," "Beaver Creek Cinema," "Beaver Creek Cheese Shop," "Beaver Creek Cafe and Lounge." And so on through the alphabet.

More recently, VAIL has been busy locking up phrases that refer in one way or another--and sometimes only obliquely--to its recreational opportunities. According to its lawsuit against Seagram's, "Vail Trademarks owns approximately 156 registrations containing VAIL under the Colorado Trademark Act [and] approximately 95 registrations on the mark VAIL in approximately 25 countries."

Thus VAIL owns the rights to "Extremely Vail," "Vail Mountain Club," "Vail Development Program" (also "Vail Development Team," "Vail Devo Program," "Vail Devo Team"), "Fly Vail," "Bike Vail," "Vail Bobsled," "Mid-Vail," "Grand Traverse at Vail," "Vail TV," "Greeters of Vail," "Vail Beach," "Vail Beach Club," "Vail SnoTours," "Vailgram," "Vail's Back Bowls" and--more impressively--"Vail's World-Famous Back Bowls."

The resort's media guide claims trademarks to more general phrases as well, including: "Mountain Welcome Tour," "Golden Peak," "Born Free Express," "The Activities Desk" and a series of children's ski and play programs titled "Mini Mice," "Mogul Mice," "Super Stars" and "Small World Play School."

Although it would have been difficult to build a lawsuit around many of Absolut's ad concepts ("Absolut Paris," say, or "Absolut Attraction"), there have been ample opportunities for companies to complain in court. In fact, several years ago, the vodka company released its "Absolut Killington" campaign. The difference between VAIL and the world-class Vermont ski resort depicted in that ad? Killington didn't sue.

 

"They're just greedy suckers," says Cuny, who is running for town council. "If there is someone out there making money at something, VAIL Associates will be looking at it. They get upset at not having total control of everything, their piece of the action. Their philosophy is: 'Declare that it's yours. Then sue everyone.'"

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