Wednesday, January 13, 2010

"The Tonight Show" controversy: do trademarks have a temporal dimension?

In a post titled Conan O'Brien Swings at NBC , SHEILA MARIKAR and BRIAN BRAIKER include text of Conan's comments about being told to move "The Tonight Show" to 12:05am:

Six years ago, I signed a contract with NBC to take over "The Tonight Show" in June of 2009. Like a lot of us, I grew up watching Johnny Carson every night and the chance to one day sit in that chair has meant everything to me. I worked long and hard to get that opportunity, passed up far more lucrative offers, and since 2004 I have spent literally hundreds of hours thinking of ways to extend the franchise long into the future. It was my mistaken belief that, like my predecessor, I would have the benefit of some time and, just as important, some degree of ratings support from the prime-time schedule. Building a lasting audience at 11:30 is impossible without both. But sadly, we were never given that chance. After only seven months, with my "Tonight Show" in its infancy, NBC has decided to react to their terrible difficulties in prime-time by making a change in their long-established late night schedule.

Last Thursday, NBC executives told me they intended to move the "Tonight Show" to 12:05 to accommodate the Jay Leno Show at 11:35. For 60 years the "Tonight Show" has aired immediately following the late local news. I sincerely believe that delaying the "Tonight Show" into the next day to accommodate another comedy program will seriously damage what I consider to be the greatest franchise in the history of broadcasting. "The Tonight Show" at 12:05 simply isn't the "Tonight Show."

From a trademark perspective, one might ask whether the consumers (viewers) identify the show with the name "The Tonight Show" or with the host, now Conan O'Brien. The audience numbers seem to suggest viewers identify the show with the host, not with the name "The Tonight Show." In contrast, with "Law & Order", most viewers might identify the show more with the name "Law & Order" than with any one particular cast member.

So, is "The Tonight Show" at 12:05am merely a show hosted by Conan O'Brien? Or is there going to be a likelihood of consumer confusion by placing "The Tonight Show" at 12:05am while a show hosted by Jan Leno runs at 11:35pm? Is there a temporal dimension to a trademark?

**Of the point about whether the show is truly source-identified by its name "The Tonight Show," the demise of the rating numbers under Conan do suggest it is not. Returning to the patent law comparison, the lack of quality in many IBM patents suggests that the source-identifier IBM is not co-extensive with high quality patent. IPBiz earlier pointed out that NBC's initial strategy with moving Leno to prime time (now an obvious failure) is not unlike the practice of many large companies cranking out low quality patents.


NBC "10 pm" and IBM "wall of patents": similar strategies?

NBC's "cheap programming" gambit fails, but incrementalist patents survive

**UPDATE. Jay Leno's take on the history of the situation-->

Oh, let’s start in 2004 — 2004, I’m sitting in my office, an NBC executive comes in and says to me, “Listen, Conan O’Brien has gotten offers from other networks. We don’t want him to go, so we’re going to give him ‘The Tonight Show.’ “ I said, “Well, I’ve been number one for 12 years.” They said, “We know that, but we don’t think you can sustain that.” I said, “OK. How about until I fall to number two, then you fire me?” “No, we made this decision.” I said, “That’s fine.”

IPBiz notes again: the value of IP (here for example in the trademark) resides in the business plan for utilizing it, not in the IP itself. IP, without a business plan, has no inherent value.


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