Is Use of Twain's Name Worth a Court Fight?

Carson City tourism officials may soon decide whether being able to use Mark Twain's name in promoting the community across the country is worth a court battle.

Candy Duncan, executive director of the Carson City Convention and Visitors' Bureau, told the bureau's board of directors that CMG Worldwide has offered to settle with the authority for its past use of the Comstock newsman's name for $1,500 and an agreement not to use the name again in promotional material.

CMG Worldwide is a national company that licenses the names and images of the famous for commercial purposes. Its clients include the families and estates of Babe Ruth, Marilyn Monroe and Charles Atlas and the cartoon cat Garfield, among others.

Duncan said CMG has provided the bureau with a contract it has from the Mark Twain Foundation Trust, saying its trustees are the sole proprietors of certain rights to the name, image, voice and facsimile signature of Clemens under the terms of the will of the humorist's daughter Clara.

Clemens died in 1910 and trademark rights in Nevada are only recognized for 50 years after a death. But CMG is based in Indiana, where law allows trademarks to be recognized for 100 years after death.

"We have not accepted the settlement that CMG offered," Duncan said. "That's up to the board and will be considered at the June 12 meeting.

"It's a question of, if we pay $1,500, will it just go away? Or is it worth it to take the fight to court on principle?"

The bureau received the initial notice from CMG in November, saying the tourism organization must stop using Twain's image and name in its advertising. A CCC&VB ad in a national travel agent trade publication was sent to CMG by a clipping service.

The bureau had attorney Louis Doescher research the issues regarding the use of Twain's name, Duncan said, and Doescher will be at the June meeting to answer questions.

The CMG contract with the Twain foundation, which Duncan received recently, is blacked out where it specifies how much the company receives for its part in licensing the use of Mark Twain. The contract was originally signed in 1986 and has been extended several times.

The Internal Revenue Service lists the Mark Twain Foundation as a private foundation with a 30-percent deductibility limitation on donations to the foundation. The U.S. Patent and Trademark Office Web site shows that CMG applied in 1996 for a trademark on the promotional use of the name, likeness and/or image of Mark Twain, but the trademark has yet to be granted. Several other trademarks using Mark Twain's name are still active, the site showed.

"We're not certain whether other states use 100 years like Indiana," Duncan said. She said the bureau may be able to continue using Mark Twain on promotional materials that are only distributed closer to Carson City. And with the 100-year anniversary of Clemens' death a decade off, the trademark may enter the public domain.

There are no known direct descendants of Clemens. Clara was the only one of Samuel and Olivia Clemens' three daughters to survive him.

Olivia Susan Clemens was a born in 1872 and died in 1896 of spinal meningitis. She was known as Clemens' favorite and her early death greatly saddened the writer who never returned to the Hartford, Conn., home where she died.

Jane Lampton Clemens was born in 1880 and was also sickly, suffering from epilepsy. After her mother died in 1904, Jane's health declined and she spent much of her time in sanitariums. She moved into her father's home in 1909 to become his private secretary, but died of a seizure-induced heart attack that December.

Clara, though, lived a full life, marrying Russian conductor and pianist Ossip Gabrilowitsch in 1909. Clemens' only granddaughter, Nina Clemens Gabrilowitsch, was born the next year. Ossip Gabrilowitsch died in 1936 and Clara moved to San Diego, Calif. In 1944, she married another Russian musician and conductor, Jacques Alexander Samossoud. She died in Sand Diego in November 1962.

Twain's will had created a trust that received income from royalties and investments and whose beneficiary was Clara. The New York Times reported in April 1962 that the estate brought in over $95,000, more than Clemens ever did in a good year while he was alive, and that the most profitable asset was 405 shares of IBM stock worth $231,000.

(Clemens is known to have lost a $200,000 investment in an attempt to develop a primitive typesetting machine and claimed that "The Adventures of Tom Sawyer" was the first book submitted for publishing to have been written on a typewriter. His faith in technology paid off, eventually.) The estate was then worth $879,000.

When Clara died several months later, her father's trust was dissolved and a new Samossoud trust established that paid 65 percent of its income to her widower and 35 percent to Nina.

Nina Clemens, who had dropped Gabrilowitsch from her name and had no children, died in a Los Angeles motel room in January 1966 of an apparent overdose. Several bottles of barbiturates and alcohol were found in the room. Nina's will left most of her estate to the American Cancer Society.

The St. Louis (Mo.) Post reported May 19, 1999, of a man named Cyril Clemens that he claimed to be the great-great-grandson of Samuel Clemens' brother, possibly Orion Clemens, who invited brother Sam to Nevada Territory and served as its first treasurer. Cyril Clemens, who lived to age 96, claimed to remember visiting the writer's Connecticut home, had founded the International Mark Twin society and made a career of collecting Twain history, the Post said.