Encore nightclub’s name at center of trademark lawsuit

Tuesday, July 14, 2009 | 12:44 p.m.

XS at Encore

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A dispute has erupted over rights to the trademark "XS" -- the name of a luxury nightclub at Steve Wynn's Encore casino resort in Las Vegas.

Wynn Resorts Holdings LLC filed suit Monday against NYLO Hotels of Atlanta, an operator of boutique hotels, after NYLO asserted rights to the trademark and offered to let Wynn pay a licensing fee for use of the XS name at Encore.

"Wynn has spent a significant amount of time, resources and money in developing and promoting a restaurant, bar, nightclub and indoor and outdoor entertainment venue at Encore under the XS mark," said the lawsuit, filed in U.S. District Court in Las Vegas.

"Wynn maintains that its use of the XS mark is lawful and does not infringe upon the rights of NYLO," said the suit.

Correspondence between attorneys for Wynn and NYLO attached to the lawsuit indicates NYLO intends to offer services using the XS mark, and begin franchising on the mark, including in Las Vegas.

"Please note that although an 'XS' hotel has not yet opened, NYLO is extremely sensitive to the use of the 'XS' mark because of the time, resources, money and public discussions it has had concerning the brand," said a May 28 letter to one of Wynn's attorneys from NYLO attorney David Rogers.

Rogers indicated a willingness by NYLO to license the name to Wynn for use at the club. Encore describes it as a "decadent vibe" poolside nightclub.

A request for comment on the lawsuit was placed Tuesday with NYLO, which says it operates two boutique hotels in the Dallas area and a third in the Providence-Warwick, R.I., area.

Wynn's suit was filed by attorneys Mark Tratos and Peter Ajemian of the Las Vegas law firm Greenberg Traurig LLP.

Discussion: 10 comments so far…

By CynicalObserver

7/14/09 at 1:41 p.m.

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It's a pretty sad day when two letters in the alphabet are subject to a trademark claim.

What will happen when all of the letters of the alphabet are used up?

The claim of this outfit from Atlanta is a shake down, pure and simple.
By mrjb

7/14/09 at 1:52 p.m.

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Wynn again!
By Bakersfield

7/14/09 at 2:07 p.m.

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Yamaha made a model of motorcycle in the 1970's called the XS. Maybe they should get a piece of the action. Seriously, someone 3000 miles away who doesn't even have any properties operating with this name, wants to sue? Mr. Wynn must spend a fortune on lawyers just to fight off these frivolous suits. Good for the lawyers, but a waste of Wynn's money.
Watch out "M" Resort. I imagine there's a few people with an M in their name that might think you owe them something.
By goingbust

7/14/09 at 2:55 p.m.

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"NYLO is extremely sensitive to the use of the 'XS' mark because of the time, resources, money and public discussions it has had concerning the brand."

You notice they didn't say "and trademark registration". I doubt they registered it.

Also, you can't claim a short sequence of letters or a common word as a trademark except except in a limited scope, such as the geographic location you are operating in or your segment of business. Notice that Pella and Microsoft don't sue each other over 'Windows', although Microsoft would have a case to sue someone over using 'Windows' to describe a competing computer operating system.

They have no case. Wynn should ask for damages on this one to recover his costs. For once, Wynn isn't the bad guy.
By denro

7/14/09 at 3:09 p.m.

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If you read the lawsuit it says that NYLO had filed a notice of intent to register.

NYLO's original communications toward Wynn Resorts look like nuisances at worst.
By AKsilvereagle

7/14/09 at 3:41 p.m.

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I am confused by the article as to which establishment actually filed the copywright trademark to make XS the trademark brand name and who was granted to obtain the rights for the brand name first.

From what I understand in the article:

...''after NYLO asserted rights to the trademark and offered to let Wynn pay a licensing fee for use of the XS name at Encore.''

Wynn Resorts filed a suit claiming it is clearly not ''copywright infringement'' and pretty much said they wont any fee to some other establishment for the use of the trademark brand name.

Seems like NYLO company does have the trademark and rights to the name.

Surely Wynn Resorts did not overlook any prior filings for a ''XS'' brand name with the US Patent and Trademark Office ... although I did find one registered trademark filing that clearly shows Wynn owns this trademark name that was first used in Dec 1996.

http://tess2.uspto.gov/bin/showfield?f=d...
By akm

7/14/09 at 4:42 p.m.

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Wow, I expected XS Energy Drink to sue them first.

http://www.xsblast.com/
By denro

7/14/09 at 4:58 p.m.

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From Wynn's lawsuit...NYLO filed an "Intent to Use" Federal Trademark Application for the mark XS
in International Classes 35, 43 and 44 for, hotel, bar and restaurant services, among various other services, on February 6, 2007."

According the the suit there was apparently no evidence of NYLO's using the name after the filing. There is no mention of the trademark on NYLO's website either.

I guess the question is how much right is due under the circumstance of filing an "Intent to Use?"
By hooloogoo

7/15/09 at 3:05 p.m.

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.
..
...If we request Peabody and his boy "Sherman," to run us back 4 or 5 years ago, in the wayback machine, we had the same "in town argument" with "The Plaza and New York's Plaza Hotel in the planned Echelon or the Frontier Project..

...Also Crazy Horse ll versus the Crazy Horse Dump and later the Paris Crazy Horse Show that Carmen (Ha Ha) Electra recently reinvented..

...The only thing Las Vegas should fear out of Atlanta is that race track circuit they are building and may take the United States Grand Prix from Vegas where it belongs..
..
.
By Facts_are_Facts

7/16/09 at 7:04 a.m.

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According to the US Trademark office, there is no XS trademark registered.