In the Name of the Duke

Charlie Carr, dressed in shorts, an aloha shirt and a pair of beach slippers, sits on a picnic bench overlooking the ocean at Alii Beach Park on the island of Oahu, remembering the moment when he finally and fully understood his predicament.

Five years ago, he watched Mahina Paoa Rapu, a relative of legendary surfer Duke Paoa Kahanamoku of Hawaii, unwrap a tiny replica of the large Tiki-like statues that sit on her native Rapa Nui, commonly known as Easter Island. "It was carved from the femur bone of [Rapu's] grandfather," says Carr. "It was extremely sacred and she was showing me, 'This is how I take care of my bones.' " He remembers that she asked about Kahanamoku: "What are you doing with [his] bones?"

Carr does not possess Kahanamoku's bones, but he does share something of great commercial value--trademark rights to the name of one of the most beloved men in the history of Hawaii. Duke Kahanamoku, known simply as "Duke" or "the Duke," is credited as the father of surfing and winner of five Olympic swimming medals. He became known worldwide after he won his first gold medal and broke the world record for the 100-meter freestyle at the 1912 Olympics. He was one of the first Hawaiians to enter the consciousness of mainland America and he was a shining source of pride for Islanders.

Watching the Duke's distant relative coddle her family relic, Carr realized that his venture was not solely about commerce. He had become a caretaker of Duke Kahanamoku's spirit.

The story of how Carr, a Santa Monica resident, acquired the rights and why he possesses only half of them hints at a little-known, decade-long trademark war that still entangles Carr, a charitable foundation connected to Hawaii's elite Outrigger Canoe Club, a Waikiki restaurant, several large clothing manufacturers, a Delaware bankruptcy court and various Kahanamoku family members, none of whom are direct descendants because the Duke had no children.

More significant, though, is the anger that the war has aroused among native Hawaiians, who perceive it as an appalling exploitation of a revered cultural icon. The conflict brings into focus a growing tension in Hawaii, unseen by most tourists, but a bitter, daily reality to island natives--a stinging reminder of a culture lost to commercialism. It fits into a larger picture with corrosive, cumulative effects--a freeway here, a high-rise there, a shopping center that partially blocks a mountain view, a gated community that closes off a beach access and ever-increasing real estate prices that prevent many indigenous islanders from buying homes. To Hawaiians, the carving up of Duke's trademark represents not only the buying and selling of a name, but the buying and selling of Hawaii itself.

"The Duke's story doesn't surprise me," says Haunani-Kay Trask, professor of Hawaiian Studies at the University of Hawaii. "It just makes me angry because I know that story over and over again. It is a story of perdition."

The trademark conflict has run hot and cold over the years, alternating between episodes of frenzied litigation and long periods of inactivity. Although it has been dormant since 1999, another skirmish has surfaced, this one over whether a small Oxnard-based corporation--engaged to market the Duke's trademark and manage the income--has done an adequate job.

"Surfing is on fire," says Dave Gilovich of Surfline.com, an online provider of worldwide surf reports. "Never have the lifestyle and culture been as heavily promoted, marketed and pushed to the American mainstream."

Last year, the surfwear industry generated $2.4 billion in sales. Quiksilver, the industry's most successful manufacturer and maker of the Roxy brand, sold $700 million of surf-related merchandise and is projected to reach $900 million this year. Whoever controls the Duke trademark stands to reap hundreds of thousands, if not millions, of dollars from clothing manufacturers, restaurants, surfboard makers and other commercial entities that are anxious to ride the wave of surfing's growing popularity. Among them are a large Waikiki hotel that has inquired about naming one of its towers after Duke, and the makers of Monopoly, who canceled plans to use Kahanamoku's name in their newly released Surfing Monopoly for fear of getting sucked into the trademark dispute's vicious undertow.

to understand how one man's legacy can cause such controversy, it's important to understand the Duke. And to understand the Duke is to appreciate the irony of the situation.

Kahanamoku, a full-blooded Hawaiian, was born in 1890, the oldest of six brothers and three sisters. At age 21 he won gold and silver medals at the 1912 Olympics in Stockholm. When the 1916 Olympiad was canceled during World War I, he raised money for the Red Cross by giving surfing and swimming exhibitions from the Atlantic seaboard to Australia, attracting thousands wherever he went. While on tour, he became one of the first American athletes to challenge the color barrier.

"The Olympic team was in Georgia, and the kids all stayed in a good hotel and were treated like kings and queens," says Fred Van Dyke, a well-known surfer in Hawaii and a friend of Duke. "But Duke couldn't stay in the hotel because of his dark skin and he couldn't eat at the table with them, so it was a real bad situation. He was hurt, very badly hurt."

Despite the poor treatment, Kahanamoku exemplified sportsmanship and kindness, to the point of even encouraging those competing against him. "This bloke, this old guy, he taught me how to beat him," said Johnny Weissmuller in 1951. He competed against Duke, then 34, at the 1924 Olympics and went on to fame as the best-known movie Tarzan. He later recounted Duke's words on the Olympic starting block: "The most important thing in this race is to get the American flag up there three times." That year, Weissmuller took the gold, Duke the silver, and Duke's brother, Sam, the bronze.

Duke's humility impressed everyone he met, but it was a single act of bravery that endeared him to the entire nation. While picnicking on the beach at Corona del Mar, he witnessed a 40-foot fishing vessel capsize offshore. He immediately paddled his surfboard through the large waves he and his friends had been surfing and rescued eight people. His heroism made national headlines and contributed to the mystique of the handsome Hawaiian who seemed to perform miracles in the water.

In the 1920s, he dabbled in Hollywood as a supporting actor before returning to Hawaii, where in 1940 he met and married Nadine Alexander, a dance instructor who was young, beautiful and "haole" (pronounced "how-lee")--a Hawaiian word for "white person" or "foreigner." Duke was able to glide gracefully between the Hawaiian friends of his youth, most of whom led simple native lives, and his affluent, usually "haole," friends at Hawaii's exclusive Outrigger Canoe Club, where Nadine felt most comfortable.

In later years, Hawaii dubbed him its official "Ambassador of Aloha," and faded photographs show him sharing a pineapple with Amelia Earhart, handing a canoe paddle to Joe DiMaggio, dancing hula with Great Britain's Queen Mother and shaking hands with President John F. Kennedy.

"He represented the image of 'aloha,' " says Steve Pezman, publisher of Surfer's Journal magazine, explaining that "aloha" stands for the spirit of kindness and sharing for which Hawaiians are known. "He traveled the world and introduced that concept to other cultures. He was in many ways pure of heart--a very simple, loving person who had this huge bunch of charisma that became commodified by everyone around him."

A Honolulu disc jockey named Kimo McVay initiated the trademarking of Duke's name in 1962, when he and the veteran surfer teamed to open Duke Kahanamoku's restaurant and nightclub in Waikiki. They hired local singer Don Ho, who would become one of Waikiki's best-known entertainers. By trademarking the name, Kahanamoku and McVay prevented others from capitalizing on it unless they paid Duke a licensing fee--similar to the lucrative fees that today's trademark owners stand to collect.

Confusion over the trademark's ownership began five years after Duke's death when, in 1973, his widow Nadine sold the clothing trademark to Los Angeles-based Catalina Swimwear. Whether Catalina actually used the trademark remains a point of confusion among the parties. Nadine believed that because Catalina failed to create a Duke line of clothing within two years, it legally "abandoned" the trademark, in which case it reverted to her. In 1986, she gave the trademark to the Outrigger Canoe Club to run a nonprofit foundation in Duke's name.

Carr claims that Catalina never abandoned the trademark, which it agreed to sell to him in 1993 when he offered the financially struggling swimwear company $10,000. Catalina, however, went bankrupt before the deal could be consummated, and Carr ended up in a bankruptcy court battling Catalina's creditors, some of whom also were vying for the name, including Warnaco (makers of Speedo, Calvin Klein and Chaps Ralph Lauren). Carr persuaded the judge to honor Catalina's agreement to sell him the trademark, and he purchased it through the court.

Outrigger then sued Carr, claiming that he had bought an abandoned trademark and that Outrigger was the true owner. It was around this time that Carr realized just how forceful an opponent Outrigger could be.

The Outrigger Canoe Club sits on one of the most expensive pieces of beachfront real estate in Hawaii. Members store their surfboards and canoes there and dine at its terraced restaurant while wearing beach slippers and aloha shirts. Its casual and relaxed atmosphere and lack of ornate facilities belie that its membership includes some of Hawaii's richest and most powerful families. Kahanamoku was one of the only Hawaiians granted membership in the early days, and although the club has long since abandoned its race-based exclusionary policy, most of its members today are Caucasian, or Caucasian mixed with a small percentage of island blood.

Although the Outrigger Duke Kahanamoku Foundation is a separate entity from the Outrigger Canoe Club, club members help oversee the foundation, which has net assets of $838,741. Last year the foundation earned just under $200,000 in trademark income and donations, spent $55,827 in operating and fund-raising expenses, and awarded $56,085 in scholarships and grants.

The foundation sponsors annual events such as the recent Boys & Girls Club Duke Sports and Fitness Day, when children from the island's low-income families are invited to splash and canoe on a west Oahu beach. Foundation president Gretchen Duplanty, who runs a successful Honolulu real estate school, tugs at the brim of her straw hat to shield her eyes from the ocean's glare as she watches a child being lifted from a canoe and placed back into his wheelchair. "That's the first time in his life that he's ever been in a canoe. Isn't that wonderful? This is my way of giving back," she says, explaining that her son has received several foundation scholarships.

The practice of awarding some foundation money to children of Outrigger members is one reason that Cameron Kahanamoku, a great-nephew of Duke, joined Carr in fighting Outrigger for control of the trademark. Outrigger wasn't doing anything about helping the Hawaiian children, he says. "Charlie and I had complained to Outrigger that they were using [the foundation] to give scholarships to the rich kids who didn't need them."

Carr, who moved to Hawaii from Marina del Rey in 1972, had met Cameron in 1980. Cameron says he told Carr that he wanted to "do something" to honor his Hawaiian heritage, and Carr suggested that they make careers for themselves by creating a Duke line of clothing. Eventually, they also agreed to form the Kahanamoku Family Foundation, which would distribute a portion of trademark proceeds to Kahanamoku family members (many of whom live on modest incomes) and fund scholarships to improve arts education for low-income Hawaiian children.

It took several years to obtain the trademark, and it took until 1995 for Carr and Cameron to sign their first licensing agreement with Authentic Fitness, a clothing manufacturer willing to pay at least $75,000 per year in licensing fees for use of Duke's name. They wound up spending the money on legal costs.

Outrigger "barraged me . . . to bury me in paper," says Carr, explaining that the battle cost him $250,000 and was complicated further when Outrigger, believing it had the right to do so, granted permission to a California company named TS Restaurants to open a Waikiki restaurant using Duke's name. Carr claims that agreement hindered a deal he was making with another restaurant. TS Restaurants then became ensnared in the fracas, according to co-owner Sandy Saxten.

"When we first opened up, we didn't know or care about trademarks," Saxten says. "We'd gotten the blessing of Outrigger, and then all of a sudden, when Charlie started asserting a lot of rights, everybody just got real legal." Saxten was forced to spend $25,000 in legal fees. Duke's Waikiki, owned by TS Restaurants, since has become one of Waikiki's most popular dining spots.

Outrigger has spent $160,000 in legal fees, according to foundation secretary Jim Fulton, who maintains that Carr has been overestimating the name's commercial value and therefore has been willing to continue fighting for the rights. "Charlie's expectations are what created this whole problem."

The sentiment is shared by many at Outrigger, including board member Pamai Tenn, who, until Nadine Kahanamoku's death in 1997, was one of her closest friends. Despite the foundation's own decision to license Duke's name to a restaurant, Tenn fears that Carr's commercial approach may damage Kahanamoku's legacy. "Every mistake they [Charlie Carr and those with him] make is going to be hard work for us to make it right."

The most accurate description of the 55-year-old Carr is one that he uses himself: "I was born with the gift of gab and a can-do attitude." But now Carr is wondering whether different choices could have averted the clash with Outrigger. "I've stepped on toes," he says. "But I don't want to draw any more blood. I've suffered a ton. I've lost a lot."

What he has lost, he says, is his business reputation in Hawaii. For all of its international flavor, Honolulu is a provincial town, and Carr has learned the hard way what it means to stir the waters. He says he once insulted a billionaire Outrigger member who was involved in the lawsuit, and he continues to pay a price for it. "Those few handful of [Outrigger] people are very powerful," Carr says.

Overwhelmed at the legal costs--and at a time when Authentic Fitness was in financial trouble--Carr in 1997 agreed to participate in settlement talks with Outrigger. He brought several Kahanamoku family members with him to the bargaining table, including Cameron Kahanamoku and Jo-Anne Kahanamoku-Sterling, Duke's niece and president of the Kahanamoku Family Foundation.

Sitting across from them were Outrigger's representatives, including Stuart Ho, a member of a family that built the first high-rise in Waikiki; Gulab Watumull, a wealthy businessman and philanthropist who helped fund the University of Hawaii's East-West Center; and Robert "Rab" Guild, whose wife's family is heir to Hawaii's $2-billion Campbell Estate. Guild, a well-liked Honolulu businessman, attempted to mediate.

But this was no simple business dispute. Underneath the surface was an undercurrent of long-standing ethnic tension. Relations between Outrigger and the Kahanamoku family have been strained since 1911. Unwelcome at Outrigger, Hawaiians living in Waikiki at the time formed a "club" of their own a few hundred yards down the beach in the sand beneath a tree, and some of Duke's brothers occasionally beat up Outrigger members. Cameron Kahanamoku's tone is matter-of-fact when he recalls Outrigger's insistence on controlling Duke's name.

"You have to look at who Outrigger is--the old school of boys. It's a very conservative social group attitude where if you're not at their level, they really won't deal with you. That's kind of how the Kahanamokus have been treated over the years."

Ironically, Kahanamoku's mother's family includes one of the club's Caucasian founders. With so much intermarriage in Hawaii, it's not uncommon for native Hawaiians to possess several different ethnic origins, or for some of Hawaii's ruling class to possess at least some Hawaiian blood--enough to give them a sense of entitlement to Hawaii. Outrigger members have pointed out that since Duke never had children, none of the Kahanamokus involved in the dispute are direct descendants. The Kahanamokus, however, are acutely aware that it was not Duke but Nadine Kahanamoku who gave the trademark to Outrigger after Duke's death.

"Our family name has been given out, and everybody has it but us," says Didi Robello, a grand-nephew of Duke and a second-generation Waikiki beach boy. "We're all being used. We're being exploited, and that's why a lot of times I don't want nothing to do with [the trademark war]." Robello is irritated that Kahanamoku family members are occasionally invited to be shown off at public events (some money-making) that honor Duke, and then ignored. "If I show up, they usually say, " 'Ah thanks, I'm glad you came. Here's a T-shirt. Bye.' "

Around the negotiating table that day in 1997, Carr insisted that the Kahanamokus be made part-owners of the trademark. Outrigger refused, and after several hours of heated exchange, Jo-Anne Kahanamoku-Sterling relinquished hope of ever owning the name. Afraid of a legal battle that would pit the family's relatively small resources against Outrigger's, she politely thanked Carr for his efforts and then broke down and wept. Cameron Kahanamoku, Carr's onetime partner, backed away as well.

Carr and Outrigger agreed to split ownership. Outrigger would receive 90% of restaurant-related income and 10% of clothing income, and vice versa for Carr. Saxten agreed to pay $80,000 per year to operate four Duke's restaurants (in Waikiki, Huntington Beach, Malibu and Kauai).

Now in her 70s, Kahanamoku-Sterling lives in Kona, on the Big Island of Hawaii, where she works as an artist and volunteers to help preserve native Hawaiian sacred sites. "In a way I understand," she says slowly, referring to Outrigger's insistence on leaving the family out. "We were kind of notorious and rebellious when we were young. [Outrigger] had received serious input from Duke and especially from Nadine," who was not very involved with the family.

Fearful of tarnishing the name, Kahanamoku-Sterling has chosen not to pursue the trademark war. "This is how my father and grandmother brought us up . . . to always be kind and respect the name. It is important to . . . retain the importance of 'aloha.' "

The dilemma for many Hawaiians, though, is that their "aloha" spirit has made them vulnerable to exploitation. According to the U.S. Census Bureau, a disproportionate number of children of native Hawaiians and Pacific Islanders--an estimated one in four--live in poverty when compared to Asians and whites in the island state. Yet abandoning their "aloha" would mean giving up the essence of their culture. Asks Kahanamoku-Sterling's brother, Bunny Kahanamoku: "If we should mar the name in any way, then what does any Hawaiian who comes after us have left in life?"

In practical terms, the trademark dispute is forcing difficult choices that Duke Kahanamoku never could have imagined. For example, Mark Gunter, raised as a stepson of Duke nephew Sandy Kahanamoku, makes skateboards and surfboards out of his Marina del Rey home and sells them through surf shops in California and Hawaii. His boards have red and gold labels bearing the words "Kahanamoku Sons"--his company name--and "Duke Kahanamoku."

With his blond hair, blue eyes and pale complexion, it is obvious that Gunter is not Hawaiian, but he is undeniably part of the Kahanamoku family. Should he have to pay for commercial use of his family's name? Either Carr or Outrigger would have to force the issue. The possibility leaves Gunter agitated, amused and indignant. "Pay? With what?" he asks. "My business is small. Besides, this is my father's family name."

The trademark also is forcing tough choices upon Hawaii's Bishop Museum, which had to change its policy last year to fit the new trademark guidelines. "Anyone wanting to use the museum's photos of Duke must obtain [trademark] permission," explains DeSoto Brown, collections manager for the museum's archives. The policy has offended some patrons. "There was one person in particular who wanted to use a photograph and who was very angry and said, 'How could this be?' "

The University of Hawaii's Haunani-Kay Trask says those small-scale disputes add up to a growing movement for native Hawaiian sovereignty--a demand for a separate nation similar to what American Indians and native Alaskans now have. "We want to have a place in our own ancestral homeland where we can live without people like Duke Kahanamoku becoming commodified," Trask says. "Otherwise, what's happened to this family will happen to everyone." Democratic Sen. Daniel Akaka of Hawaii has proposed legislation that would grant Hawaiians such status, but the bill has not gained significant support in Congress.

Meanwhile, the trademark war became even more complex this summer. The snarl stemmed from a second agreement that Carr and Outrigger made four years ago. Suspicious that trademark income was not being accurately reported, both parties transferred their trademark rights to a California company they created called Malama Pono, which in Hawaiian means "to take care of in a righteous way." Malama Pono's responsibility is to market the trademark and collect and distribute the income to Carr and Outrigger. An Oxnard businessman, Don Love, runs Malama Pono and has invested some of his own money, although he won't say how much. Carr now accuses Love of not marketing the name as promised. (The only income Carr has received from Malama Pono is his 10% from the Duke's restaurants, or $8,000 per year.) The issue currently is in arbitration.

Back at the picnic table, Carr is looking down at his hands, talking as if to himself, lamenting that the trademark war has no end in sight and that he has become, along with Outrigger, a focal point of animosity. "I wanted to bring the family into the fold," he says. "I asked them to stand tall. I told Jo-Anne, 'Come on. Get in the canoe, Jo-Anne. You have a right.' But I disappointed them. I built their hopes up and I didn't deliver."

Carr likens himself to "Lord of the Rings" character Frodo Baggins, as protector of the name. "Everybody is trying to pull it to their own side of power, to the darker side. Who else can I hand it to? If I give it to the family, it's too emotionally packed. If I put it in any one people's court, they tend to pull it to their persuasion. I just don't need any more fights. I think it's time for all of us to quit fighting and do something decent."

Last year, the U. S. Post Office created a stamp in Duke's honor, and its unveiling was celebrated by daylong festivities at Waikiki Beach. On the surface, it looked as if one venture in Duke's name might go untarnished. But last February, Smithsonian Magazine ran a humorist's column questioning the judgment of those who had decided to put Duke on a stamp. The author, who complained of "licking the man's back" in order to affix her postage, managed to offend almost an entire state. "Who is this man?" she demanded to know. "And how did he get on my stamps?"

Those who now gather behind his name could easily have told her. He was a champion among people whom he united with grace and "aloha"--an amazing feat of skill and love, and one that has yet to be repeated.

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