RBR+TVBR INFOCUS
Just hours after Entercom officially assumed control of CBS Radio’s stations, it scuttled CHR/Pop formats at stations in Dallas and New York, respectively.
Now, they are Alternative stations, using the “ALT” brand. Is that a legal problem, given iHeartMedia‘s use of the brand across the U.S.?
We asked three attorneys for their take on the matter.
From August 1992 through August 2013, KYSR-FM 98.7 was branded as “Star 98.7,” using the moniker as it transitioned from AC to “Modern AC” to full-blown Alternative.
It then took on the “ALT 98.7” brand, with the tagline “L.A.’s New Alternative.”
Since then, iHeartMedia — the owner of KYSR — has spread the “ALT” brand across a slew of markets, using FM translators or fully licensed signals in its effort to unify many of its Alternative rock stations.
On Friday (11/17), “New York’s New Alternative” and “DFW’s New Alternative” arrived.
There’s just one potential problem: Two Entercom stations made the changes, and took on the “ALT” branding at WBMP-FM 92.3 and KVIL-FM 103.7, respectively.
Why it is a potential problem and not an all-out cause for an immediate cease-and-desist request from iHeart attorneys is rooted in intellectual property rights and how trademark protections are judged across the U.S.
Francisco Montero, an attorney at Washington, D.C.-based Fletcher Heald & Hildreth, says the matter of branding rights comes down to one simple situation: Establishing your brand versus having actual intellectual property rights in a particular market.
A media company’s first defense is rooted in whether or not the brand in question is “a defendable registered service mark.”
He asks, “Does iHeart use the brand in the market? Do they have a Federal registration on it?”
No, ALT is not used in Dallas; in New York the “Alternative Project” was added earlier this week onto a HD3 signal tied to WAXQ-FM 104.3.
Kevin Goldberg, an intellectual property attorney at Fletcher Heald & Hildreth, was unable to find a registered trademark for “ALT” when conducting a search on behalf of RBR+TVBR.
Meanwhile, Montero notes that there are common law marks, on a state level, that companies must consider when adopting a brand that may seem to be free and clear of obstructions in a market that’s not yet seen its arrival.
RIGHTS STOP AT THE BORDER
While Goldberg continues to confirm that no Federal trademark has been registered for the “ALT” brand, he notes that — going on that assumption — rights stop at the border of their markets.
Still, attorneys will look first at whether or not identical marks are being reviewed. In this case, the answer is yes — not only is Entercom using an identical brand, but its taglines in Dallas and New York equal that used by iHeart’s KYSR in Los Angeles.
Then, there are other factors that are examined. For instance, does the brand have a singular website accessible to all across the U.S., marketed to those across the U.S.?
In the case of iHeart, the answer is no for ‘ALT.”
Where is does have a national presence, however, is through iHeartRadio Apps. Even so, this presence comes via multiple “ALT” stations primarily targeting a specific market, and not a national audience.
“Internet streaming does add a new wrinkle to it,” Goldberg says. “Does that, by definition, translate or convert to a national mark? Or, is it a market-only mark?”
These questions may appear to be easy to answer, but it’s getting more difficult to do so. Montero has yet to see a case that says digital streaming translate to a national mark. However, he asks, “At what point is there consumer confusion? It is getting dicier as a brand is no longer just radio and spreads to a website [or an App].”
Then, there is what Goldberg says is the “commonality of goods and services” for a brand.
Montero explains, “It’s not like ‘ALT’ is being used as a brand name for a laxative. It’s being used in exactly the same way, but in a different market. At what point are in they in the same marketplace?”
For another D.C. communications attorney, who requested anonymity, the lack of a presence of a brand in a market constitutes an “abandoned market.”
The attorney says, “If nobody was using it in New York, that it is up for grabs.”
That said, a Cease-and-Desist letter from iHeartRadio could already be heading to Bala Cynwyd, Pa., home to Entercom’s corporate headquarters.
If that’s the case, negotiations will likely prevent any court battle from taking place.
“Actual lawsuits are fairly rare,” the attorney says.
That’s because the cost of litigation may not be worth it, given how some format changes transpire.
“Some of these trademarks that people argue and fight over … a few years later people get bored with it, and it gets dropped anyway.”
Entercom hopes that’s not going to happen in New York and Dallas — or any other market where it sees a first-time opening for “ALT.”
