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The ousted artistic director of Martha Graham’s artistic institutions cannot control the use of the legendary dancer’s name, despite having registered a trademark in it, a federal judge ruled Tuesday. The director, Ronald A. Protas, a longtime friend of Graham and the sole heir to her will, had sought an injunction barring both the Martha Graham Center of Contemporary Dance and the Martha Graham School of Contemporary Dance from using the dancer’s name or claiming to teach the “Martha Graham technique.” In November 1995, the U.S. Patent and Trademark Office approved Protas’ registration of the name “Martha Graham,” as well as the term “Martha Graham technique.” And in 1999, Protas entered into a licensing agreement with both the Martha Graham center and school that set the terms under which they could use the two registered terms. But federal Judge Miriam Cedarbaum of the U.S. District Court for the Southern District of New York denied Protas an injunction, finding that the school and the center had owned the use of the two terms all along, and that Protas had provided the Patent and Trademark Office (PTO) with “erroneous and misleading” information when he applied to register the two marks. Protas had informed the PTO that as Graham’s sole heir, he held the “oral license” that Graham had granted to both the center and the school to use her name and teach her technique. However, Judge Cedarbaum wrote in Martha Graham School and Dance Foundation v. Martha Graham Center of Contemporary Dance, 01-271, there is “no credible evidence” of such an “oral license” during Graham’s lifetime. To the contrary, Cedarbaum concluded, Graham had granted the school and center “an irrevocable right” to use her name in connection with teaching her dance technique. While making no finding as to whether the misleading information had been provided intentionally or not, Cedarbaum faulted Protas for registering the marks in his name, while he was a director of both the school and center, as “contrary to his fiduciary obligations.” Additionally, Judge Cedarbaum pointed out that the center had used the name “Martha Graham” in its title continuously since it was incorporated in 1948, as had the school since its incorporation in 1956. After a period of increasing friction, Protas was removed as artistic director of the center in May 2000. By the end of the month, the center had suspended its operations because it was unable to meet its payroll. By the end of 2000, however, the school and center were both able to obtain a significant amount of new funding and to secure a long-term lease at the same location where they had been operating. Those favorable developments allowed both the school and center to reopen on Jan. 16 of this year, according to the opinion. Protas was represented by James J. McGuire, Cyrus Benson, Alan Blum and Timothy McCarthy of White & Case. The Martha Graham school and center were represented by Dale M. Cendali, Claudia Ray, Louis B. Kimmelman and Samuel M. Leaf, of O’Melveny and Myers. Several individual members of the boards of the center and school were represented by Victor A. Kovner and Matthew A. Leish of Davis Wright Tremaine. A separate board member, Robert N. Solomon, was represented by Frankfurt, Garbus, Kurnit, Klein & Selz. Marla G. Simpson, Barbara L. Quint and Charles H. Smith III appeared for the state attorney general’s office, which opposed Protas’ efforts to control the “Martha Graham” name.

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