FRESH!!

[CarterB]

I would toddle up to the victorian house on occasion and be on with Al Collins, who worked there at the time. Grand memories.

 

[DavidKaye]

For the record...I was the PD & OM when the owner made the decision to change the calls. I begged him to reconsider ("Uh, gee boss, someone already HAS that one!"), warned him we'd get sued and have to start all over but his mind was made up. After the deed was done, I took a couple of calls from my old friend Howard Bloom at KTWV/L.A., who pleaded with ME to do something about it (he really didn't want to have to sue us), but there nothing I said could change the owner's mind...UNTIL the complaint arrived, weighing about 15 pounds!

A station in Monterey (KWAV) has called itself "The Wave" at least once in its 35+ year lifetime with that callsign.

The amateur lawyer in me says it's still possible to challenge the trademark and get it thrown out. The defendant would have to show that there was no attempt to defraud customers (advertisers, that is) into believing that they were buying time on a Los Angeles radio station, or that they had any connection to the programming genius behind the LA station.

I can see a legal argument now: "Your honor, ALL radio stations broadcast using radio waves. It is a simple logical extension to call a station "The Wave"; there is nothing unique about the slogan to make it proprietary."

Trademarking "The Wave" is as silly as trademarking "Fair and Balanced" as Fox tried to do.

 

[LKellerIII]

"Trademarking "The Wave" is as silly as trademarking "Fair and Balanced" as Fox tried to do."

I think Fox News decided to make a fuss about "Fair and Balanced" because it was being used in an ironic and satirical manner by Al Franken to trash them. Remember that there are a lot of silly lawsuits that cost both plaintiffs and defendants a lot of money.

I recall that the trademark owners of the Jack format threatened to sue Bonneville because their Max-FM sloganeering was similar. In particular, they were upset about the slogan "We play what we feel like" because it was similar to the Jack slogan "we play what we want.". For supporting evidence, they claimed that Bonneville had stolen the format (can you steal a format?), and that those snarky 'Maxwell" liners were similar to the Jack liners...though they never claimed any direct plagarism

I don't think the lawsuit got very far - I know that Bonneville didn't change the Max slogans, but beyond that, I can't recall.

 

[DavidKaye]

I recall that the trademark owners of the Jack format threatened to sue Bonneville because their Max-FM sloganeering was similar. In particular, they were upset about the slogan "We play what we feel like" because it was similar to the Jack slogan "we play what we want.". For supporting evidence, they claimed that Bonneville had stolen the format (can you steal a format?), and that those snarky 'Maxwell" liners were similar to the Jack liners...though they never claimed any direct plagarism

Threats are just that: threats. I can't see any way a format can be protected. The elements are common and there are only very obvious ways to combine them. In order to be protected something has to be unique and not obvious. And the slogans likewise. A slogan, "We play what we want" won't hold, I don't think, because it's obvious.

I can see where someone could trademark a slogan such as "We play the Top 40 of the past 400 years" (KDFC once used a slogan like that for its classical format) because it's not obvious that the concept of "Top 40" could refer to a list of top classical workhorses since most people identify "top 40" to mean new pop hits.

A lot of the time it comes down to who has the biggest pockets and/or who will blink first.

Frankly, I'd love to see the bluffs called on lots of this trademark stuff. Too many companies are getting by with too much crap. The nerve of the NFL to restrict anybody from using the words "Super Bowl" is downright arrogance. I'd love to see an appliance company sue the NFL, saying, "There is no intent to deceive the customer into thinking that they're in a football stadium when they're really just watching the Super Bowl on TV."

Some years back the P.I. McFly restaurant chain sued the producers of the movie "Back to the Future" for use of the name "McFly" for the lead character. The producer argued successfully that nobody would mistakenly watch a movie theatre thinking they were dining in a restaurant.

 

[LKellerIII]

"Some years back the P.I. McFly restaurant chain sued the producers of the movie "Back to the Future" for use of the name "McFly" for the lead character. The producer argued successfully that nobody would mistakenly watch a movie theatre thinking they were dining in a restaurant."

Well, yeah - totally different products, like my example of Total toothpaste and Total cereal. In the early 70s, there was a chic high-priced hairdresser where I lived who called himself Tony Sassoon. He got away with it for a couple of years, then VidalSassoon (already famous) got wind of it, and sued him. Tony didn't have a leg to stand on, considering his real name was Tony Schwartz...or something.

 

[RadioStarOne]

I remember back in late 1969 and on into the early 70's KCRA 1320 in Sacramento, CA. used the term "Fresh Air" to describe their format. So the concept is hardly "Fresh" at all! Really! The lengths station management all around the country goes through to keep up with the Jones's! Hey Guys and Gals it the Music! Not some silly overused slogan! Oh! By the way KZAP after dumping the rock format was "Fresh Country 98.5" in the nineties.

 

[weav]

Threats are just that: threats. I can't see any way a format can be protected. The elements are common and there are only very obvious ways to combine them. In order to be protected something has to be unique and not obvious. And the slogans likewise. A slogan, "We play what we want" won't hold, I don't think, because it's obvious.

That particular slogan is. It would be like trying to TM the word "musical" for a music format.

On the other hand, remember the "Choose it or Lose it" vs. "Yes/No Radio" debacle... search Google Groups in ba.broadcast and read Higgo's story on that one. Formats CAN be protected in some way...

 

[RadioStarOne]

The problem is there is nothing "Fresh" about radio at all. The other problem is that the listeners keep having to buy higher and higher boots to get through all the excrement and now they need to buy a periscope to see where they are going! lol lol lol.....

 

[SFStatic]

Trademark is common law..."first in time, first in right." The trick is proving first use. In order to have a stronger mark, you have to register it with the govt. This takes an IP lawyer and our old friend, money. A trademark can be copyrighted, as disputed above, IF in the proper catagory...this according to a couple IP attorneys from L.A. at a seminar I attended this past fall. The whole intellectual property area is pretty squirrly (technical legal term), actually.

 

[DavidKaye]

That particular slogan is. It would be like trying to TM the word "musical" for a music format.

My point is that even though a trademark is issues does not mean it cannot be broken. I notice that the patent for the swing is no longer listed on the Patent Office's database. I assume that it was disallowed after people complained about it.

A trademark has to be unique in some way. "Fresh" when applied to radio or music is not unique. I suppose "Fresh" when applied to fake antiques (where they take chains and beat up on modern furniture to make it look old) might be a unique use that could be protected.

 

[SFStatic]

You are correct about this, but they don't even have to be broken. You can also prove that a mark has been "abandoned" by the holder due to disuse, and not zealously protecting it. A perfect example of the latter is Disney- which lets loose the hounds of hell on anyone they perceive is encroaching on something they have trademarked or copyrighted.

 

[DavidKaye]

Trademark is common law..."first in time, first in right." The trick is proving first use. In order to have a stronger mark, you have to register it with the govt. This takes an IP lawyer and our old friend, money. A trademark can be copyrighted, as disputed above, IF in the proper catagory...

Once again, there is no "copyright" involved. Copyrights are registrations of works of art and are handled by the Copyright Office. Trade and service marks are registrations of names and are handled by the Patent & Trademark office. Copyrights have definite lifetimes. Trademarks have indefinite lifetimes, as long as the mark is continually used in commerce.

I have filed several trademarks, so I think I know a little about this process. Here's an example of one of the trademarks I registered: http://tess2.uspto.gov/bin/gate.exe?f=doc&state=99erbc.2.3

Notice that there is a distinct description of how the mark looks -- it talks about how the image is presented in perspective. This was to distinguish it from similar marks which are just squares. The fact that the image appears to recede from the viewer on the right makes it distinctive, definitely distinctive from any mark consisting simply of squares. Also note that the mark makes note of very specific uses in commerce. (Incidentally, the mark was originally used to denote the telephone interface to the system.)

First use is usually proven by written documents such as advertising, brochures that can be dated, etc. Some years back a company claimed to have invented the concept of software activated by touch tones. I believe MCI paid them off, but others scrambled to find any printed information proving that the technology had been in use before the claimant had made their claims to first use. Eventually enough evidence was found and the claim was thrown out. Now, while this is a patent I'm talking about, trademark works the same way.

 

[bobgowa]

A station in Monterey (KWAV) has called itself "The Wave" at least once in its 35+ year lifetime with that callsign.

The amateur lawyer in me says it's still possible to challenge the trademark and get it thrown out. The defendant would have to show that there was no attempt to defraud customers (advertisers, that is) into believing that they were buying time on a Los Angeles radio station, or that they had any connection to the programming genius behind the LA station.

Metromedia's argument was that they had the "Wave" service-marked as a name for its smooth jazz format, and they "might" have been planning to use it on their San Francisco station. The bottom line, of course, was the bottom line: The station owner in San Rafael knew even his million$ couldn't stand up to Metromedia's mountain of lawyers.

 

[LKellerIII]

"Metromedia's argument was that they had the "Wave" service-marked as a name for its smooth jazz format, and they "might" have been planning to use it on their San Francisco station. The bottom line, of course, was the bottom line: The station owner in San Rafael knew even his million$ couldn't stand up to Metromedia's mountain of lawyers."

David could be right about the dubious legality of holding trademark rights for this kind of thing, and I'm not even an amateur lawyer - but it makes sense to me that most corporations will try to avoid a legal fight that will cost them hundreds of thousands of dollars.

Another example - there are "Kiss-FMs" all over the country. It seems like most of them are owned by Clear Channel, which I assume would be the presumptive holders of the trademark. A few are not owned by CC, because they pre-dated CC's hold on the "brand." but if you tried to start a Kiss-FM today in a major market that has CC stations, you would probably have a fight on your hands. It would be interesting to know how CC came to hold the trademark...it might date to their purchase of KIIS in LA.

Remember that there briefly was another "Wave" in the Bay Area - a short lived World Music format on 93.3. But it was a CBS station, and by that time, CBS probably held rights to the trademark by virtue of buying KTWV in LA from MetroMedia.

 

[WordLife]

I was just driving in and tuned into Alice for all 30 seconds, so maybe this isn't in context. I did hear someone or a VO go..."FRESH"

Something to ponder...

 

[LKellerIII]

"I was just driving in and tuned into Alice for all 30 seconds, so maybe this isn't in context. I did hear someone or a VO go..."FRESH"

Entercom most likely bought the rights to "Fresh" to preemptively prevent another company from starting a light rock "Fresh 97.3, " or whatever. Everybody figures CBS would be the company most likely to do this because so many of their SF stations are under-performing, and they have a "Fresh 102.7" light rock station in New York.

Regardless, I don't think Entercom could - or would even want to prevent other stations from using the word conversationally.

I remember awhile back, there was a station that always referred to new additions to the playlist as "Fresh Tracks."

Another example - MOViN 99.7 uses the slogan "music that makes you feel good." KOIT has been using that phrase for years in one of their cloying jingles. But as far as I know, they didn't sic their lawyers on CBS for that one.

 

[oaktree]

Keep in mind, too the "Magic" phrase for Greater Media stations which owns the "service mark" and has enforced, strongly, those who use the mark with permission, particularly as it applies to "a soft-rock radio format."

Also, Keymarket did the same to the "Froggy" country brand ... and the little green smiling froggy. It, too was enforced. CBS owns a former Keymarket station in Riverside and I would imagine, the mark that came with the sale. Looking at several station sales of late, I see at least a full page of "transfer of logo's, marks, identies, brand names, etc." that have been registered for use in particular stations and markets.

"CAT Country" is another one that is "licensed" for use in today's environment.

From what I understand, identifying marks, logos and such may be copyrighted ... while words may not, but the association between the two can and does get expensive, especially if a certain "look" is used.

You can bet that there would be bloody war over a Wall*Mart with Wal Mart. And those who think they are protected by registering a "domain name" for Internet use and tie up dozens of names are well known to have lost the war if a company wants to do battle, as well.

 

[LKellerIII]

"You can bet that there would be bloody war over a Wall*Mart with Wal Mart. And those who think they are protected by registering a "domain name" for Internet use and tie up dozens of names are well known to have lost the war if a company wants to do battle, as well."

Yes - a few years back there were cases of...shall we say...opportunistic individual businessmen registering domain names that involved the names of big corporations, figuring those deep-pockets companies would pay them later on for the name. At least a few of those deep pockets gave their money to their lawyers instead, went to court and won - saying essentially that individuals didn't have the right to register domain names involving well established trademarks.

 

[1069_KIFR]

Uh-oh.... I saw a Pillsbury commercial. They used the phrase, "FRESH, flaky rolls!"

 

[LKellerIII]

"Uh-oh.... I saw a Pillsbury commercial. They used the phrase, 'FRESH, flaky rolls!'"

I think you may be onto something KIFR. Given that the Doughboy has been "poppin' fresh" for decades now, maybe they can sue Entercom.

Or perhaps KOIT is safe as long as they don't change the slogan to "fresh light rock, less flaky talk."