Monday, Feb. 2, 1998 | 10:03 a.m.
Although it is one of the hottest properties in Las Vegas, the New York-New York hotel-casino is experiencing trouble with the New York Stock Exchange.
It's not that the resort's stock value has plummeted or been yanked off the Big Board because of scandalous improprieties. As a joint venture resort, New York-New York doesn't even have any stock.
The problem is that the New York Stock Exchange is miffed that the resort used a stylized version of its facade in the casino's "financial district" and made fun of the NYSE name by creating the New York $lot Exchange.
NYSE attorneys blustered in U.S. District Court documents filed in New York that connecting the 200-year-old Wall Street enterprise with demon gambling will drag down its reputation and likely confuse people.
"Both are risk taking," New York-New York attorney Mark Tratos shrugged during a recent interview.
The NYSE complaint states, "The Exchange has emerged in this century as the pre-eminent stock market in the world, with a reputation unmatched for permanence, integrity and the quality of its regulation ... (while the casino) touts the lure of gambling, the possibility of winning great riches and the vagaries of chance and luck."
Tratos responded: "We say you have to be lucky both places. They just don't want to recognize their major tumbles."
He said the NYSE also misses the point of the year-old resort -- to provide an entertaining caricature of the Big Apple by poking fun at traditional New York icons. He pointed to the Marilyn Monroe-esque Statue of Liberty and the yellow cab cars on the roller coaster.
"New York-New York is full of parody and parody is protected speech," Tratos said. "Everyone likes parody until it happens to them."
He conceded the resort didn't seek NYSE permission before reproducing its facade but said there was no need to.
Tratos explained the law also is very clear that public buildings are part of the public domain and can be copied without permission. He noted that architectural copyrights for three-dimensional facades didn't even exist until 1990.
In the lawsuit, NYSE lawyers took the legalistically narrow position that the resort usurped the Stock Exchange trademark in the casino's construction. That trademark is a line drawing of a neo-classical columned building front of the Stock Exchange.
In an April letter to NYSE attorneys, Tratos argued that the drawing depicting a facade with six rounded columns flanked by two rectangular columns "could apply to any neo-classical building throughout the world."
While other New York landmarks asked that they not be included in the consolidated pop art replica of the essence of New York, the NYSE waited until a month after the resort was opened in January 1997 to complain.
The exchange board of directors want the facade demolished and references to the NYSE purged.
Tratos said the resort made a concession by renaming the resort's slot club the "New York-New York $lot Exchange."
But that wasn't enough and the NYSE filed a federal lawsuit in the New York courthouse that is only four blocks from the stock exchange.
A telephone call by the SUN to NYSE lawyers about why the case degenerated to the point where a lawsuit was necessary was referred to Stock Exchange spokesperson Lynn Newman.
She politely declined to answer questions, citing the Stock Exchange's policy against commenting on pending litigation.
In addition to the NYSE's desire to have references to the Stock Exchange expunged from New York-New York, the lawsuit also seeks a fat slice of the casino's profits plus punitive damages.
The resort's incorporation of the NYSE facade and "$lot Exchange" reference "have the likelihood of deceiving or confusing the public ... and bastardizing the NYSE marks by making them subject to ridicule," the suit states.
In a letter to NYSE lawyers, Tratos wrote: "It seems incredulous that you would argue that the business of those companies would tarnish your client's mark by association. The New York Stock Exchange is already associated with gaming properties through its listing of those properties on its exchange."
The MGM Grand Corp., which is one of the joint-venture partners in New York-New York along with Primadonna Corp., is one of those gaming stocks traded on the NYSE.
In response to the allegation that the public would be confused that the NYSE is somehow endorsing the casino, Tratos scoffed that "people are smart, they get the joke."
"In a city where theme resorts dominate ... the public will recognize it as part of the environment," he said.
"It is highly unlikely that anyone seeking the NYSE facade in that context would somehow mistakenly believe they were seeing the New York Stock Exchange building or had been literally transported to New York City," Tratos wrote in his letter.
He added that resort patrons "are no more likely to believe that the New York Stock Exchange sponsored, approved, sanctioned or authorized the resort than they are to believe it to be sponsored by owners of the Empire State Building, the owners of the Chrysler Building or the United States Government, which owns the Statue of Liberty."
"People vacationing in Las Vegas and coming to the hotel will undoubtedly know where they are and what they are doing there," Tratos wrote.
The Stock Exchange responded by filing the lawsuit and, according to Tratos, pursuing it with a "shotgun approach" more vigorously than any other case involving New York-New York.
The resort's lawyer said that for the Stock Exchange to win the lawsuit it would have to prove there has been confusion and a resort-sponsored survey of people in New York, Los Angeles, Las Vegas and San Diego "showed people are not going to be confused."
Tratos said a settlement may be close in the case, which he said likely would not have become a legal fight if the NYSE had not waited until after the resort was open to complain.
"Based on our (preconstruction) brochures, a number of entities wrote to say they didn't want to be associated with New York-New York," Tratos said. "Because we were still in the design phase, it was easy to redraft the plans and get on with the project."
Those included Radio City Music Hall and Rockefeller Center, which had concerns about the Atlas sculpture that New York-New York wanted to reproduce.
Tratos said the resort decided to create a similar but unique Atlas sculpture and while Rockefeller Center still objected, it didn't sue.
The longtime Las Vegas lawyer said attempts to compromise and settle the case are not out of concern that the resort wouldn't win.
"There is no advantage to business people to spend money on lawyers," Tratos said in his office in the Hughes Center off Paradise Road. "Smart, good businesses avoid the fights."
He said the settlement proposal is for the resort to change the "bas relief" at the top of the facade in the resort to ensure that it is different from the NYSE.
But the issue may revert to a business decision.
One estimate for the work is more than $120,000 and that, coupled with other factors, may make it feasible to take the case before a federal judge.
Settlements, Tratos admitted, sometimes can encourage others to sue. And he said there may be value in the resort taking a stand and "saying that this industry is legitimate and legal and it doesn't serve anyone's interests to cast aspersions on legalized gambling."
But for a gaming enterprise, the gamble of going to court is a major consideration.
"We like sure bets," Tratos said.
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