Could Mindich have worked a deal to park WFNX on a boat somewhere?

[Scott Fybush]

On 7/22/2012 3:56 AM, Kevin Vahey wrote:
> This is why lawyers get rich.....
>
> Hypothetically let us say 96.9 decided to drop talk and go alternative
> and were awarded the calls WFNX. In a case like that how could Mindich
> argue he still owns the trademark after selling the station? CBS can
> happily park calls like WBCN somewhere but the Phoenix can not.

I am not a trademark lawyer, or indeed a lawyer of any kind, but it 
seems to me that if Mindich's lawyers are smart about trademarking the 
use of "WFNX" in a fairly broad context - let's say, "radio and internet 
broadcasting and concert promotion" - and if Mindich continues to use 
the "WFNX" brand actively, it would be extremely challenging for anyone 
else to make productive use of the WFNX callsign in the Boston market.

Even if you can persuade a court that the sale of 101.7 voided the 
portion of Mindich's (hypothetical?) trademark registration covering 
terrestrial radio broadcasting, I'd think he'd still have ironclad 
trademark protection for all the ancillary uses. Would you want to be 
able to be "WFNX" on the air but not be able to promote concerts as 
"WFNX," or stream your audio as "WFNX"?

> Carry it one step further - if another station did get the calls WFNX
> could they then challenge that they should own wfnx.com?

I don't think the relevant authorities much care about an administrative 
callsign assignment from the FCC. If Mindich holds the "WFNX" trademark 
and is actively using it on wfnx.com, nobody's going to take that domain 
away from him.

> I heard tonight that CBS just might do it as WBMX means nothing to them.

I suppose they could change the 104.1 calls if they really wanted 
to...but it seems to me all they'd be doing would be sowing needless 
confusion, especially if they can't do anything commercially with the 
"WFNX" branding.

Put it another way...I might be able to start a restaurant company and 
get state licensing officials to issue me the relevant permits and 
licenses under the name "King of Burgers, LLC." But just because I have 
that legal name on my permits doesn't mean I can go into the marketplace 
and use that name in commerce. "WFNX" may disappear from an FCC license, 
but "WFNX" is still very much in use in commerce, and I expect Mindich 
and his lawyers to defend that use aggressively.

s