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‘TV Everywhere’ Claim Draws Flames

3/05/2012 12:01 AM Eastern

Can Dish Network co-opt
“TV Everywhere” for its exclusive
use?

The five biggest U.S. cable operators,
along with Time Warner
Inc., are trying to block Dish
Network from securing a trademark
on the term, which many
in the industry have used for the
past several years to broadly refer to authenticated online
video services.

What’s at stake: whether Dish will have the legal right to
forbid anyone else from using the term “TV Everywhere”
in marketing their own products and services.

On Feb. 28, Comcast, Time Warner Cable, Cox Communications,
Charter Communications and Cablevision Systems
filed an opposition to Dish’s application with the U.S.
Patent & Trademark Office’s Trademark Trial and Appeal
Board.

Dish first filed for trademark protection on “TV Everywhere”
in September 2009. But the MSOs and Time Warner
Inc. said the term was already being used generically.

Dish “was aware prior to publication of the applied-for
term that others had used this term in connection with
a service other than [the] applicant’s that allows its subscribers
to watch live and prerecorded television programming
on multiple devices, including computers or mobile
devices,” the cable operators alleged in their complaint.

The MSOs said the patent office should not grant Dish
trademark status on TV Everywhere because that would
preclude them from using the term. “If [Dish] were granted
registration of TV Everywhere, [Dish] would obtain certain
statutory rights, including prima facie rights, to the exclusive
use of TV Everywhere, all to the damage of Opposers,”
the cable companies said.

Meanwhile, Time Warner
Inc., in its opposition filed Feb.
24 with the USPTO, argued that
it coined “TV Everywhere” and
that Dish has never made substantially
exclusive use of “TV
Everywhere.”

“The term ‘TV Everywhere’
has become so widely recognized
as a generic or merely
descriptive term that it is incapable of functioning as a
trademark for any services because it neither identifi es
nor distinguishes the source of any services,” Time Warner
said in its complaint.

Dish declined to comment.

The satellite-TV operator has until April 8 to file an answer
to the cable operators’ claims and until April 4 to answer
Time Warner Inc.’s complaint.

Dish currently uses the TV Everywhere appellation to
promote its DishOnline.com website and Slingbox products,
which provide access to live and recorded video programming
via multiple devices over the Internet.

The USPTO in July 2010 suspended Dish’s TV Everywhere
application, citing Time Warner Inc.’s prior application
to trademark “On Demand Everywhere” as potentially
nullifying Dish’s claim.

After a review at Dish’s behest, the office on Nov. 1, 2011,
published the TV Everywhere claim for opposition.

September