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ProFunds and S&P Dispute Licenses

ProFunds of Bethesda, Md., which plans to introduce a line of six new exchange-traded funds, five of which will track the Standard & Poor's 500 Index, does not have the right to do so, according to Bill Jordan, a spokesperson for McGraw-Hill Companies of New York, Standard & Poor's parent company.

But, Michael Sapir, CEO of ProFunds, said ProFunds has licenses to offer funds based on the S&P 400 and 500 and that enables the company to offer exchange-traded funds based on the indexes as well.

"We're confident that the licensing agreement we have allows us to offer a share class that can be listed on an exchange," Sapir said.

ProFunds is licensed to use two S&P indexes, however, the existing licensing agreement does not include exchange-traded funds and issuing the new exchange-traded funds class would require a separate license, said Jordan.

"All licenses cover specific uses of our intellectual property," said Jordan. "An ETF is not covered by the licensing agreement."

Still, it is premature to discuss McGraw Hill filing a lawsuit against ProFunds since ProFunds has not yet registered the new funds with the SEC, said Jordan. ProFunds is in the process of registering the new funds, according to Hratch Najarian, a spokesperson for ProFunds.

Earlier this year, McGraw-Hill sued Vanguard Index Trust and The Vanguard Group on behalf of Standard & Poor's, charging breach of contract, trademark infringement and unfair competition in connection with Vanguard's proposed Vipers exchange-traded fund products. McGraw-Hill charged that Vanguard breached its licensing agreement by using Standard & Poor's proprietary indices and trademarks in connection with its proposed Vipers products without permission from Standard & Poor's. While Vanguard applied for an exemptive order from the SEC for the right to sell its exchange-traded Viper funds, it did not seek an expansion of its license from Standard & Poor's. The case is pending, Jordan said.