trademark infringement

What legal issues should a broadcaster be concerned about when expanding its use of digital media?  Two weeks ago, I did a presentation for the CBI National Student Electronic Media Conference on issues for college broadcasters who are using digital media.  While this presentation was made to college broadcasters, most of the issues discussed

As we wrote about last year around this time, MARCH MADNESS is a term that is protected by trademark law.  It is owned by the March Madness Athletic Association (MMAA), a joint venture between the NCAA and the Illinois High School Athletic Association (IHSA).   The IHSA was actually first to begin using this mark to describe its high school basketball tournament in the 1940s. 

Brent Musburger brought MARCH MADNESS to public attention in using that term to describe the NCAA college basketball tournament, during which many hearts are broken each year….if you are lucky enough to have a team that made it this far. (Northwestern came this close to its first NCAA appearance.)

Normally, this would be a case of so-called "reverse confusion," in which the junior user of a mark (here, the NCAA) is so much bigger than the senior user of the mark (the IHSA) that the public thinks the mark belongs to the junior user.  In the typical reverse confusion case, the senior user can stop the junior user from using the mark.  But that did not happen here.  Why? 


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One of the questions we commonly get from broadcasters and others around this time of year is whether and/or how they can use the term SUPER BOWL.  Some refer to it as a trademark while others call it a copyright.  Who is right…and how can it be used?  The term SUPER BOWL is a registered trademark owned by the National Football League. We previously discussed this issue in 2009, 2010 and 2011

Actually, the NFL owns at least eight trademark registrations containing the words SUPER BOWL, as well trademark registrations for the terms PRO BOWL and even SUPER SUNDAY.  Aside from these trademark registrations, the NFL also owns the copyright to the telecast of the game itself.  You may have heard that in past years, the NFL tried to stop Super Bowl parties shown on large TV screens.  This was an enforcement of the NFL’s copyright in the game.  Now, the NFL apparently no longer tries to stop Super Bowl parties unless the proprietor charges admission to see the game.  Again, this is a copyright issue.  But what do these rights mean for a broadcaster who wants to run a Super Bowl promotion or an advertiser who wants to run a campaign involving the Big Game?


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Many station owners think they can adopt any name, positioning statement or slogan for their station so long as no one else in the market is using the exact same name or slogan.  That thinking is often incorrect, and can be very costly if a name is adopted and has to be changed later because it infringes on someone else’s intellectual property rights.  Nicknames and slogans used in station advertising or promotion are controlled by trademark law.  Even a station’s call sign, which must be approved by the FCC, cannot be too similar to an in-market competitor’s call sign without running afoul of trademark law.  You may have read about recent litigation concerning the station nicknames "Bob" and "Bob FM."  In that case, there is apparent contour overlap between two separately owned stations using the same name.  But trademark law can come into play even when stations are not in the same market and do not have overlapping contours.

Trademark rights can be established in one of two ways.  The first station to use a name or slogan can establish priority within that station’s geographic market or contour.  Alternatively, one can file an application for registration of a station name or slogan at the US Patent and Trademark Office (the "PTO"), and thereby obtain nationwide rights in that name or slogan, if no one else had prior use or a prior application.  Since trademark applications can be filed on an intent-to-use basis, a station can establish priority for a mark it is not yet using.  This is why a trademark search is so important prior to using a mark. 


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