Wynn Resorts is suing Resorts World Las Vegas, claiming the $4 billion, 3,000-room mega-casino the company is building just across the Las Vegas Strip has lifted the distinctive curved architecture of its Wynn Las Vegas and Encore resorts.
Wynn has filed a five-count complaint in U.S. District Court in Las Vegas charging the Genting Group subsidiary with trademark infringement, copyright infringement, “false designation of origin” and unfair competition.
As reported in the Las Vegas Review Journal, the complaint states, “The architectural design embodied in defendant’s Resorts World Las Vegas hotel and casino is substantially similar to plaintiff’s registered copyrighted architectural work, and therefore defendant is violating plaintiff’s copyrights in addition to plaintiff’s registered and common law trade dress.”
Wynn submitted with the complaint several photographs of Wynn Las Vegas, Encore and Wynn Macau to highlight the “architectural trade dress” issue𑁋which is to say, the concave façades that define the shape of each building along with their curved bronze glass coupled with horizontal cream-colored banding between the lines of glass panes. The design is also incorporated in the company’s resort casino under construction outside Boston.
Wynn is seeking an injunction prohibiting Resorts World’s use of such “trade dress,” which Wynn considers its own, and which is “likely to cause confusion, to cause mistake or to deceive” the public, according to the complaint, and an order requiring the developer to “remove any materials or goods that constituted infringing trade dress from its Resorts World Las Vegas hotel and casino that is currently under construction”.
Wynn also wants to be awarded any profits resulting from the use of the colors and architectural style as well as exemplary and punitive damages.
Resort World declined comment on the lawsuit. But parent Genting said, “RWLV is in the process of reviewing the complaint with its legal counsels and will strenuously defend the claim and take all necessary legal action, as appropriate.”
While intellectual property and trademark protections are frequent subjects of litigation, rarely do they involve the architectural design of buildings, although such a dispute did arise over the design of Kazuo Okada’s Manila resort casino and became a factor in a storm of litigation that erupted in 2012 between Wynn Resorts, Steve Wynn and Okada, who was Wynn’s former business partner and had been vice chairman of Wynn Resorts and its largest individual shareholder.
In an interview with the Review-Journal, Mark Lemley, director of Stanford University’s program of law, science and technology and an expert in copyright law, said Wynn would have a good case against Resorts World if its building was an exact copy—only it isn’t.
“The court will have to decide not just whether the buildings are similar but whether those similarities reflect creative new expression rather than something well-known in the architectural community,” he said.
He said Wynn may also need to show “that people associate that design exclusively with them and that seeing a similar building serving a similar purpose will confuse consumers into thinking this, too, is a Wynn hotel”.
