January 18, 2012; Source: Washington Post | Oh, wouldn’t it be really awful if the law of the jungle applied to the nonprofit sector? You know, might makes right? Survival of the strongest? Eat or be eaten? In The Jungle Book, Rudyard Kipling described the law of the jungle in the behavior of the wolf:
Now this is the Law of the Jungle—as old and as true as the sky;
And the Wolf that shall keep it may prosper, but the Wolf that shall break it must die.
As the creeper that girdles the tree-trunk the Law runneth forward and back—
For the strength of the Pack is the Wolf, and the strength of the Wolf is the Pack.
Maybe it is appropriate then to find that a community and arts center in tiny Berryville, Va. Is being sued by the Wolf Trap Foundation in Vienna, Va. Wolf Trap’s performing arts center is called the Barns at Wolf Trap. Last month, Wolf Trap filed a federal trademark infringement case against the Berryville nonprofit, which calls itself the Barns of Rose Hill.
According to the Washington Post, the Wolf Trap Foundation sent the volunteer directors of Rose Hill a letter instructing them to change their name. A month after Rose Hill opened, the Wolf Trap Foundation registered “The Barns” as a service mark, having already trademarked “The Barns at Wolf Trap” long ago.
The Berryville facility is actually two barns that the nonprofit fixed up to be a community arts center. Its volunteer directors can’t quite fathom the competitive problem they pose to Wolf Trap. Wolf Trap alleges that the nonprofit added “of Rose Hill” deliberately, according to its brief, “to cause consumers to believe that [Wolf Trap] had expended its operations to include a new location.” Wolf Trap charged that Rose Hill infringed upon its trademark “in a manner that is calculated to deceive and cause confusion among prospective purchasers.”
The requested remedy? An injunction preventing the use of the name “Barns of Rose Hill;” the destruction of all signs, labels, logos, etc. using the name “Barns;” compensation to Wolf Trap for the damages it has sustained, including lost profits (with compensation to be tripled because “of the willful and deliberate nature of [Rose Hill’s] unlawful conduct);” and Wolf Trap’s costs and fees for the three lawyers from Arent Fox LLP that are assigned to the case.
We checked the 990s. The Barns of Rose Hill pulled in $152,476 in contributions and $57,096 in program income in 2009 and $100,904 in contributions and $60,961 in program income in 2010. With its more complex financial structure, the Wolf Trap Foundation for the Performing Arts doesn’t have its 2010 990 posted on Guidestar, but its 2009 filing shows $25,677,732 in total revenue, including $7,385,108 in contributions and grants and $12,238,760 in program income. The reported 2009 compensation of $447,832 for the Wolf Trap president alone was larger than the entire budget of the all-volunteer Rose Hill organization that year.
It’s hard to see how Rose Hill’s renovation of two dairy barns as a community center venue for hosting local history and heritage festivals and local artwork displays causes problems for Wolf Trap. Toward its close, Kipling’s poem reads:
Because of his age and his cunning, because of his gripe and his paw,
In all that the Law leaveth open, the word of your Head Wolf is Law.
In Virginia, it is a well-heeled wolf using the power of the law to beat down a tiny, rural community arts nonprofit. Our heart is with Barns of Rose Hill. —Rick Cohen
Correction: An earlier version of this newswire incorrectly listed the Barns at Wolf Trap, which are a year-round venue, as Wolf Trap’s summer performing arts center. NPQ regrets the error.