Alpha Media, Saginaw is proud to announce that WSGW-AM/FM raised $53,250 with their radiothon held on December 21. Money donated will go towards 1,775 nights of hope and care at the Rescue Ministries of Mid-Michigan. Rescue Ministries has homeless shelters in both Saginaw and Bay City, and, combined they house over 200 people per night including men, women and children.
Alpha Media, Saginaw Operations Manager and WSGW Program Director, Dave Maurer commented on the announcement,” This was our eleventh year for our radiothon and the highest we had ever raised before was $42,000. We thought the $45,000 goal might be a bit ambitious, but went ahead. We were blown away when our audience contributed $53,250! Homelessness is a never-ending issue and this money will certainly be put to good use, providing a hand up to those having a difficult time.”
Once you have identified your marks and sought protection through registration for some or all of them, there are still going to be other issues that you will need to consider. Trademark owners have an obligation to police their marks and take steps to stop infringers. Otherwise, they may run the risk that someone else will profit off their marks or tarnish the reputation they have developed for those marks. In extreme cases, the failure to police one’s marks may result in losing them entirely. The biggest issues in trademark protection today arise from the use of trademarks on the Internet. In this blog, we identify some situations that you may encounter or want to think about.
You undoubtedly have one or more websites to promote your services, to interact with your listeners or viewers or to make video or audio available for online viewing or listening. You have spent a fair amount of time and money promoting your sites. Then, you learn that someone else has registered and is using a domain name that is confusingly similar to your domain name or one of your trademarks to attract traffic to their site. There are numerous ways that these cybersquatters can register a variation on your domain name or mark: adding (or dropping) a hyphen, adding a generic term, misspelling a word, omitting a letter, and replacing the letter “o” with a “zero” or the letter “l” with a “one” are some of the most common.
What should you do? You should establish a budget for taking action against cybersquatting. As a practical matter, however, you cannot pursue every one of these domain name registrations – you would need an unlimited budget. Our view is that you should only go after those domain names that have an active website that damages you in some way or are so close to your domain name or marks that they are drawing a lot of traffic. For example, does the domain name re-direct people who are looking for your website to a competitor’s site? Does it contain offensive content? Is it being used for some sort of scam or fraudulent activity?
Once you decide that there is a problem, what are your options? If it is a competitor, a cease and demand letter may do the trick. In many cases, however, you may not even be able to determine the true identity of the registrant. You probably do not want to incur the expense of bringing a civil action in court. There is an alternative. There is a relatively inexpensive and fast remedy, called the Uniform Dispute Resolution Policy. It is essentially a mandatory arbitration that all domain name registrants must agree to accept. There are three things that you will need to prove: (1) the domain name is identical or confusingly similar to one of your trademarks; (2) the registrant has no legitimate interests in the domain name; and (3) the domain name was registered and has been used in bad faith. If you prevail, the domain name will be assigned to you. Trademark owners win over 85% of all cases filed and they typically are resolved in about 60 days.
Finally, there are two types of websites where you may just need to accept them and take no action. First, parked or “pay-per-click” webpages incorporate various links to third party sites or advertisements. The domain name registrant receives a small payment for each person who clicks on one of these links. Such websites are extremely common and it is not usually going to be worth it for you to go after them unless there is a pressing need for that particular domain name. Second, if someone has registered a domain name similar to your mark and is using it only for legitimate criticism, they are protected under the First Amendment and you are unlikely to prevail. In fact, your actions may be posted on the website to claim that you are a hypocrite for asserting your own First Amendment rights as a broadcaster, while not respecting those of others. So, the better course may be to just grin and bear it.
Defensive Domain Name Registrations
You can avoid some of these problems by registering domain names that are similar to your domain name or trademarks, even though you do not want or need them. Your costs in registering such domain names may be less than the cost of having to take action against even one cybersquatter. An attorney who is experienced in this area can provide you with suggestions on the most common types of variations on your mark that you may want to register.
The New Top Level Domains
In the past, a trademark owner only had to worry about what cybersquatting in a limited number of top level domains (the part of the domain name that appears to the right of the dot), e.g., .com .net, .org and a few others. Even so, as discussed above, the scope of the problem has not been similarly limited because of the numerous possible variations on your domain name or mark.
Over the last two years, the organization that is responsible for the management of the Internet, ICANN, has approved the launch of hundreds of new top level domains, with more to come. These new top level domains fall in numerous categories: truly generic (e.g., .online, .site, .website, .cloud, .help, .xyz), geographic (e.g., .nyc, .london), industry (e.g. .news, .press, .accountant) and others. Thus, the potential number of problems has grown exponentially as has the cost of obtaining defensive registrations for your trademarks.
Very few, if any, of these new gTLDs have caught on with the public and it is expected that many will ultimately fail. It is my view that most businesses should be very selective in registering their marks in any of the new gTLDs. For example, the European Broadcasting Union has been chosen by ICANN to administer the “.radio” domain name as a community top level domain. Thus, it will only be open to members of the International Radio Community. Radio station licensees may want to register their call letters and other trademarks as .radio domain names.
Anyone who wants to register a mark as a second level domain should get that mark registered with the Trademark Office. Marks that are federally registered can then be registered in a database called the Trademark Clearinghouse, which will then allow the owner to seek registration in a new gTLD for a sixty-day period before the registry can make its domain names available to the public.
Do you ever conduct a search on the Internet and wonder why the first-listed results are even there? It happens because someone is paying the search engine to lists its ad (or “sponsored link”) in response to searches for a particular term (or “keyword”). Sometimes, these terms may be one of your trademarks and, in some cases, the sponsored link may be for one of your competitors. Unless your trademark appears in the sponsored link, however, most courts have become unwilling to take action. More and more often, they conclude that there is no likelihood of confusion because the sponsored link is typically somehow set off or distinguished from the actual search results, such as by incorporating the word “Ad,” and consumers have become used to seeing these sponsored links and are not likely to think that they are associated with the owner of a brand that he or she was searching. Where, however, the sponsored link or the web page to which it is linked includes a reference to your trademark, you may have a remedy. If you decide to bid on your competitor’s trademarks as a keyword that will generate a sponsored link to your website, you equally need to avoid making any visible reference to the competitor or its marks.
Concurrent Use of Trademarks on the Internet
Historically, television and radio stations have been local. If two stations in the same market used similar slogans, consumers would likely be confused. Advertising for one station could result in more listeners for the other station. Similarly, one station might get credit from Arbitron for a listener who was tuned to a different station. In that situation, the broadcaster that used the slogan first would have a trademark infringement claim available as a remedy. In contrast, a station in Chicago, a station in Miami and a station in Los Angeles could each use the identical slogan without any problems. For example, Arbitron could determine that a listener who used a slogan to identify a station could easily determine which one it was based on where the listener lived.
Streaming of broadcasts meant that a listener in Chicago might be able to listen to the broadcast from Miami or Los Angeles on any Internet enabled device. Or, someone who conducted an Internet search using the slogan as a search term could easily be directed to the web site for any of these stations. Courts have resolved many claims based on webcasting or other activity on the Internet by finding that being on the Internet is not always the same as engaging in activity in every geographic area nationally. If one party has a federal registration for its mark, the answer may be more complex.
These issues will continue to arise in cases involving Internet-only radio stations or webcasters. Even though FCC-licensed broadcasters cannot use the same call letters as another licensed station, webcasters can try to identify themselves any way that they want, particularly if they are using four letter “call” letters that begin with a “W” or a “K.” Issues can arise when the website operator uses “call letters” as part of a format this is a “tribute” to a defunct station, but the call letters have since been assigned by the FCC to another radio station.
Users of social media frequently adopt a name or handle that is identical to a well-known trademark. In many cases, there is no bad faith and making a complaint to the individual may result in unwanted publicity. Most social media have adopted policies to address complaints by trademark owners, but many are not responsive to the concerns of trademark owners. Here, too, defensive registrations of names in social media may be the best approach.
The increasing uses of the Internet have been a great boon to most businesses, but has created many new problems as well. They may seem overwhelming at times, but, with some planning, they can be managed whether your business is large or small. And, like most problems, they will not disappear if we ignore them.
This concludes our Trademarks Basics series – we hope you’ve enjoyed learning about this fun and engaging area of law.
For more in our series on trademark basics, see Part One on what a trademark is and why it is important. Part Two talked about the importance of trademark searches. Part Three, as set out above, dealt with the benefits of Federal trademark registration. Part Four suggested conducting a trademark audit to make sure that you are maximizing the value of the brands that you own.
Editor’s Note: The views and opinions of this article do not necessarily reflect those of the MAB. Contact the MAB for information on the MAB’s official editorial policy.
Kevin Robinson will be speaking at this year’s Great Lakes Broadcasting Conference (GLBC) March 7-8, 2017 in Lansing. Kevin will present two sessions: “Coaching The Coaches” and “#Branding – in a Social Media Age.” More information and registration here.
Plus, dollars to doughnuts, you’ll be the only one in your brand lane paying attention.
Kevin Robinson is a record-setting and award-winning programmer. His brands consistently perform in the Top 3 of the target – often times as the list leader. In his 35 years of radio, he’s successfully programmed or consulted nearly every English language radio brand. Known largely as a trusted talent coach, he’s the only personality mentor who’s coached three different morning shows on three different stations in the same major market to the #1 position. His efforts have been recognized by Radio & Records, NAB’s Marconi, Radio Ink, and has coached CMA, ACM and Marconi winning talent. Kevin lives in St. Louis with his wife of 30 years, Monica. Reach Kevin at (314) 882-2148 or email@example.com.
Wendy Sobeck is the Traffic & Billing Manager for Midwestern Broadcasting in Traverse City, including stations WTCM-AM/FM, WBCM-FM, WJZQ-FM, WCCW-AM/FM, WATZ-FM, WRGZ-FM and WZTK-FM.
Wendy has been in traffic for 23+ years, all but three years with her present company.
Q1: What is your favorite comfort food? Wendy:Broccoli Chicken Fettuccini Alfredo.
Q2: Which Superhero would you be, and why? Wendy: Probably Wonder Woman… she was my favorite growing up… I like her ability to make people tell her the truth with her lasso and just generally kick butt, while looking amazing.
Q3: When I’m not working, I’d rather be … Wendy:With my husband and kids on vacation somewhere amazing.
Q4: If I had the chance, I’d really like to have lunch with: Wendy: There are so many, but I’ve always said I’d love to meet Oprah Winfrey.
Q5: What’s the best advice you have ever received? Wendy: Marry someone who you LIKE as well as love.
Q6: Tell us something about yourself that very few people know.
Wendy: I’m a pretty open person… so I cannot think of anything.
The National Association of Broadcasters (NAB) is accepting entries for the 30th annual NAB Crystal Radio Awards, honoring outstanding community service. Winners are announced at the NAB Show Radio Luncheon, held Tuesday, April 25 in Las Vegas.
Established in 1987, the NAB Crystal Radio Awards bring national recognition to radio stations for their year-round commitment to serving communities. A panel of judges with backgrounds in broadcasting and community service select 50 finalists and 10 winners.
Awards are open to NAB Member Radio stations. Entries are due by January 31.
To enter, a station must submit an online entry form describing their community service efforts for the 2016 calendar year.
Finalists will be announced in February. In addition to the presentation of the Crystal Radio Awards, the NAB Show Radio Luncheon will include the induction of nationally-syndicated radio personality Delilah into the NAB Broadcasting Hall of Fame.
Entry submissions must be received by January 31. Entry information is available here or by contacting Tobi Davis at the NAB.
In addition to the Crystal Awards, the entries for the NAB Educational Foundation (NABEF) Service to America Awards are being accepted through March 7, 2017. All radio and television stations and broadcast ownership groups are eligible to apply for Service to America Awards. More information here.
A museum about one of the country’s first African-American owned and operated television stations is set to open in Detroit.
The William V. Banks Broadcast Museum & Media Center details the historic achievements of WGPR-TV 62. The museum also highlights Detroit media personalities and the growth of African-American media ownership in cable networks and internet platforms. The museum’s media center will train middle school and high school students how to operate television cameras and editing equipment.
The museum will open on January 16, Martin Luther King Jr. Day. Festivities planned for the opening include public remarks, a ribbon cutting and exhibit tour for special guests. The museum will then open to the public from 11 a.m. to 3 p.m.
WGPR-TV’s first broadcast was in 1975 on Channel 62 in Detroit. For 20 years the station remained on air until it was sold to CBS in 1995. It is now WWJ-TV.
“We are extremely excited to see this long-awaited project come to fruition,” said Joe Spencer, former WGPR program director and spokesman for the WGPR-TV Historical Society.
The museum, named after the late founder of the TV station, is inside the building that housed the original studios.
“WGPR-TV was a trailblazer in many ways and visitors to the museum will see the amazing ways the station paved the way for minority programming and updated technology, as well as launched the careers of many successful African Americans in the media,” said Spencer.
Beginning January 16, WKQI-FM’s (Detroit) morning show Mojo In The Morning will expand its footprint in Michigan when WSNX-FM (Grand Rapids) begins airing the program.
We love Michigan and are so excited to have the show heard in West Michigian,” said Mojo. “As a big fan of WSNX, we are honored to be on the two best Top 40 radio station brands in Michigan!”
“We are excited to expand Mojo In The Morning to WSNX,” said WSNX Program Director Stick. “This show is fun, entertaining and will provide a daily blend of radio not currently available in West Michigan.”
The Federal Communications Commission (FCC) reports that the nationwide EAS test, conducted in September 2016, was a success, though it revealed “shortfalls” in some state-level EAS plans and other areas that could be improved.
FCC public safety officials note that improvements made to EAS after the first nationwide test five years ago, plus the implementation of a new online reporting system, “appear to have significantly improved test performance over what was observed during the 2011 test.”
The Public Safety and Homeland Security Bureau identified several areas where the Commission could take steps to “potentially strengthen the EAS” and listed some examples, including:
Some EAS participants experienced poor quality audio and were not able to deliver the Spanish language alert because they received the test from an over-the-air broadcast source before their EAS equipment performed its regular check of the IPAWS internet feed, which typically occurs every 30 seconds. Requiring participants to check the internet-based IPAWS feed upon receiving a broadcast alert and transmit the corresponding CAP alert, if available, would ensure that the most timely and content-rich version of the alert is broadcast. This would be particularly important for time-sensitive alerts, such as earthquake early warnings, where seconds matter. The CAP alert would contain a clear digital audio file as well as any available text or audio files in languages other than English.
Some people with disabilities reported difficulty receiving or understanding alert text or audio. EAS tests can be made more accessible by applying the accessibility rules that already apply to live EAS alerts to EAS tests.
Some plans were difficult for EAS participants to locate, while others presented monitoring obligations and other information in a manner that EAS participants found difficult to implement. The FCC can take steps to further facilitate the centralization and standardization of plan information.
Some participants did not receive the alert because they did not properly configure or maintain their equipment. The FCC, in coordination with state emergency communications committees, state broadcast associations and other stakeholders, will use the test results to provide guidance to those EAS participants that experienced technical difficulties.The test included the first use of the FCC’s new online EAS Test Reporting System. The staff said it will continue to analyze the results in conjunction with FEMA and said it is continuing to accept late-filed test results.
Some 85% of test participants successfully retransmitted the test alert; 69% reported no complications in receiving or retransmitting. “Many EAS participants reported that the test alert that they received featured the high quality audio from the CAP-based alert that FEMA distributed via IPAWS.”
For the first time, 74 EAS participants retransmitted the IPAWS-generated Spanish language version of the alert. And reports from the commission’s Public Safety Support Center proved effective for collecting feedback and should continue to be used for EAS tests.
Oxenford notes that “The dates set out on the calendar include FCC filing deadlines and dates by which the FCC requires that certain documents be added to a station’s public file. These dates just recently changed for noncommercial broadcasters as the FCC suspended its requirement that noncommercial stations file Biennial Ownership reports every other anniversary of their license renewal filing here. Instead, their reports will be due on December 1 deadline which is the deadline for all stations, both commercial and noncommercial, to file these Biennial reports. That deadline is included on this calendar. In some states there are political windows even in what seemingly is an off year for elections (two governors and several big-city mayoral races are particularly noteworthy). The date for the beginning of the lowest unit rate window for the November general election is on the calendar, but stations need to check locally for primary dates and for any special elections that may be held in their service areas. Also included are some copyright deadlines, including dates to make payments to SoundExchange for Internet streaming royalties.”
“While the dates on this calendar may change, and new ones may be added, this at least gives you a start in planning your regulatory obligations. And, remember, you should always talk to your own attorney to make sure what dates are important to you.”
According to a report in AllAccess, BMI has filed a lawsuit in Federal Rate Court to set interim fees for radio stations represented by the Radio Music License Committee (RMLC).
The RMLC’s proposed interim rate is well below BMI’s previous deal, and BMI’s lawsuit states that “the effect of which would have a significant impact on the royalties BMI pays to its songwriters, composers and music publishers. The RMLC has justified its proposed rate based upon incomplete and incorrect information regarding BMI’s radio performances. BMI disagrees fundamentally with the RMLC’s proposal and, consistent with past practices, is asking the Court to maintain its most recent rate while new terms are negotiated.”