Zoo’s Marketing Of Ivan Draws Legal Growl Ex-Guardian With Trademark Interest Wants T-Shirts Pulled

The former guardian of Ivan the Gorilla says she’s upset about Zoo Atlanta’s decision to start selling T-shirts featuring a black-and-white sketch of the 32-year-old primate.

Not only is it an infringement on her trademark, but Mary Lou Borgert also says the depiction of Ivan with glaring yellow eyes is particularly offensive.

“Ivan doesn’t have yellow eyes,” she said.

The Ivan shirts - which range from $15.95 to $17.95 - went on sale this month in the zoo’s gift shop. They’re also offered by mail order in the zoo’s monthly magazine.

In the Saturday editions of The News Tribune, Borgert said she had applied for a trademark that she claims gives her exclusive rights to the name “Ivan” on T-shirts, coffee cups and other assorted memorabilia.

“They’re illegally using my trademark,” she said. “I can sue them, and I plan on doing just that.”

But Zoo Atlanta’s marketing director doesn’t think there’s much point to a lawsuit.

“If we get to the point where we’re making a profit and she wants a share of it, we’ll be happy to talk to her,” said Gail Eaton. “But so far, we’re talking about zero, so what’s there to divvy up?”

As of midweek, the gift shop had only sold a handful of shirts and five T-shirt orders had arrived in the mail, Eaton said. “It doesn’t look to me like they’re jumping off the shelves,” she said.

Zoo Atlanta spent about $2,000 for the trial run of 300 shirts, Eaton said. Most of them were given away to zoo supporters and people involved in the three-year struggle to move Ivan from his solitary cage at the B&I Shopping Mall in Tacoma to a zoo where he could live with others of his species.

“We see them as being more for promotional purposes than for profit,” Eaton said.

But the zoo makes a substantial profit from merchandising associated with Willie B., a widely beloved ape who also lives at the park. During the past year, the zoo has raked in more than $111,000 in profits from the sales of Willie B. goods.

The zoo also plans to get a trademark for a new line of goods based on Willie B.’s daughter, “KudZoo.”

“They deal with trademarks all the time,” Borgert said. “They’re in there to make money … and they’re doing it illegally.”

Borgert applied for the trademark on Ivan’s name and likeness last year and it’s on the verge of being approved, said Ruth Nyblod, a spokeswoman for the U.S. Patent and Trademark Office in Washington, D.C.

Legal experts say Borgert could probably get an injunction barring Zoo Atlanta from selling the Ivan shirts.

“She could make them stop even if there were no money involved,” said Craig S. Jepson, adjunct professor at Seattle University Law School.

But if the zoo hasn’t profited from the shirts, chances are pretty slim that Borgert would seek financial compensation, Jepson said.

Ivan was formerly the star attraction in the B&I, a circus-theme retail outlet that once boasted a menagerie including elephants, bears and monkeys. Borgert wrestled control of Ivan from the store in bankruptcy court.

She agreed to move Ivan to a zoo, but wrangled over the details for nearly two years before he was finally shipped to Zoo Atlanta last October.

When Borgert was fighting for custody of Ivan, Zoo Atlanta officials and animal rights activists criticized her for applying for the trademark and copyright on a specific drawing of Ivan’s face.

“What really bugs me is that I was condemned for making money off Ivan, and I never made a buck,” Borgert said.