Tribal casino amends trademark suit against Henderson’s Mystic Lodge

By Steve Green

Sunday, Nov. 28, 2010 | 6:25 p.m.

Eleven months after the small Mystic Lodge Casino in Henderson was sued for trademark infringement, the litigation has heated up with the filing of an amended complaint by Minnesota's big Mystic Lake Casino Hotel.

The Shakopee Mdewakanton Sioux Community, owner of the 600-room hotel-casino near Minneapolis, filed suit in U.S. District Court in Las Vegas in January against Templeton Gaming Corp. of Las Vegas.

The Minnesota property charged that the Nevada neighborhood casino, which lacks a hotel, has been infringing on the tribe's longstanding trademark rights in the word "Mystic" as it relates to casino and related services. This mark has gained national recognition since the tribe opened the Minnesota casino in 1992, the tribe's lawsuit said.

Attorneys for the Henderson Mystic Lodge, however, responded in court papers that the Nevada properties' actions "constitute nothing more than good faith competition and the plaintiff cannot stifle such competition."

"Plaintiff's claims are barred by its unfair competition and monopolistic, anticompetitive conduct in contravention of antitrust laws," the Mystic Lodge response said.

The Nevada property argued that the "Mystic" name is generic and can't be protected by a trademark, that its products are not substantially similar to the products offered by the Minnesota property and that there is no market confusion about the two casinos' products.

"Any similarity between any products offered by these defendants and plaintiff is mere coincidence and is incapable of creating any confusion in the marketplace," said the Nevada property's response.

In another filing, attorneys for the Henderson casino agreed that Mystic Lake enjoys notoriety as one of the largest tribal government-owned casinos in the nation.

The Mystic Lodge, on the other hand: "Is not owned by an Indian tribe. The Mystic Lodge Casino is not located on an Indian Reservation. The Mystic Lodge Casino has no entertainment venue, no hotel rooms and no table games. Instead, the Mystic Lodge Casino has less than 200 slot machines. The Mystic Lodge Casino enjoys no national notoriety, and has never turned a profit since opening in 2007."

"Mystic Lodge's database of approximately 30,000 players represents less than 4 percent the size of the alleged player database of Mystic Lake Casino (800,000)," the attorneys said.

"The 'core element' for the jury will be whether there is a likelihood of customer confusion between plaintiff's Mystic Lake Casino in Minnesota and defendant's Mystic Lodge Casino in Henderson, Nev.," the attorneys for the Nevada casino added in a filing.

As the case heads toward trial, attorneys for the Mystic Lodge said they're also investigating a "suspicious document" the Nevada casino received in September from the Global Gaming Expo.

This was a promotional mailer for the expo, which ran Nov. 16-18 in Las Vegas, addressed to "Don Damond" of "Mystic Lake Casino" at the Henderson casino's address.

The Nevada casino's attorneys said they called a representative of the expo, who could not explain how the mis-mailing occurred since the expo registration system did not confuse the addresses of the two casinos.

"Defendants anticipate plaintiff will attempt to use the mailing of this suspicious document to defendant's address as evidence of 'actual confusion.' The odd coincidence is that this 'mis-mailing' arrived mere days after plaintiff's vice president was deposed and testified extensively that he was unaware of any instances of actual confusion between the casinos," the Nevada casino's filing said.

"It is necessary for the defendants to depose a designee from Global Gaming Expo to determine the registration process for the expo, learn how the mailer was generated and to confirm whether plaintiff or plaintiff's agent caused the mailing to be sent out to manufacture a false instance of confusion," the Mystic Lodge attorneys wrote.

As to the deposition of the Minnesota casino's vice president, the Nevada casino's attorneys wrote: "Bryan Prettyman, the vice president of marketing at (the tribal casino), was deposed on Sept. 14. Mr. Prettyman unequivocally admitted no instances of any actual confusion between Mystic Lake Casino in Minnesota and the Mystic Lodge Casino in Henderson, Nev."

"Defendants specifically asked whether Mr. Prettyman was aware of any instances of actual confusion between the parties. He responded 'no' to each example. Twenty-one more questions were asked regarding specific instances of confusion -- Mr. Prettyman's responses were all negative," the filing said.

These questions involved potential confusion expressed by casino players, hotel guests, entertainment venue customers, corporate meeting room guests, distributors of Mystic Lake Casino merchandise, wholesalers, retailers, suppliers, news reporters, insurance agents, government bureaucrats, job applicants and creditors.

He also was unaware of any complaints about the Mystic Lodge being misdirected to the Mystic Lake; or misdirected correspondence, telephone calls, invoices and legal notices; or news stories confusing the two properties.

Prettyman was asked if he was aware of any players who had shown up at the Minnesota casino that meant to visit the Mystic Lodge; or if any customers had inquired as to a relationship between the two casinos; and said no both times, the court filing said.

But the tribe, while defending its trademark rights in the case, further charged that it learned during the litigation that Templeton Gaming may have purchased another casino in the Las Vegas area and planned to call it the "Mystic Rose."

Attorneys for the tribe complained that even after being fully apprised of the tribe's many federal registrations for the "Mystic" trademarks, the defendants intended "to operate a second casino under a Mystic mark in Las Vegas -- the premiere gaming market in the United States and perhaps the world."

Nevada Gaming Commission records, however, indicate the casino at issue is on Cheyenne Avenue in North Las Vegas and continues to be called the Fort Cheyenne.

If there was an agreement to buy the casino business, it apparently didn't happen as Fort Cheyenne's gaming license continues to be held by Cheyenne Saloon & Gambling Hall Inc., an entity controlled by Boyd Cox Bulloch and Patricia Jeanne Bulloch.

Templeton Gaming had filed an application for a casino at the Fort Cheyenne site under the Mystic Rose name, and it was approved by the Nevada Gaming Commission in April 2008.

But a key employee application for that site was withdrawn in February 2009 and there's currently no Templeton association with the site's gaming license, Nevada Gaming Commission records show.

As the trademark lawsuit proceeds, the parties agreed to a discovery schedule in which:

• The Mystic Lodge will be able to subpoena the Global Gaming Expo about the misdirected promotional mailing.

• Templeton will turn over to the tribe a file and architectural renderings of the "Mystic Rose Casino."

An amended complaint filed by the tribe this month doesn't mention the Mystic Rose, but does complain that besides operating the Henderson casino, the defendants planned to develop a complex at the Henderson casino site called Mystic Plaza that would include a motel, retail, restaurants and the expansion of the casino.

The Nevada casino and the Templeton entities have been represented in the litigation by attorneys Phillip Aurbach and David Duncan of the Las Vegas firm Marquis & Aurbach, Craig Francis Robinson II of the Las Vegas firm Bogatz & Associates P.C. and Las Vegas attorney Dana Robinson.

The Minnesota casino is represented by Jonathan Dettmann and Timothy Cruz of the firm Faegre & Benson LLP in Minneapolis as well as Rodney Jean and Gregory Gemignani of the firm Lionel, Sawyer & Collins in Las Vegas.