GAF Broadcasting Co. v. Caswell-Massey Co.

Caswell-Massey Co. (Caswell) (defendant) owned and operated a classical music radio station called WNCN. In 1975, GAF Broadcasting Co. approached Caswell about sponsoring a radio program that featured both classical and Baroque music and conceived of the title for the program: Music of the Perpetual Past. From 1975 through 1977, GAF sponsored the program. During the summer of 1977, GAF ceased to sponsor the program, but Caswell continued to broadcast a program of classical and Baroque music under the title Music of the Perpetual Past and broadcast spot commercials during the program’s time slot. GAF resumed sponsorship of the program in the fall of 1977 but ceased sponsorship altogether in 1979. During the period of GAF’s sponsorship, WNCN’s program guide listed the program with a notation as to GAF’s sponsorship. When GAF ceased to sponsor the program, reference to GAF in the program guide likewise ceased. Also during the period of GAF’s sponsorship, GAF’s vice president wrote the advertising script for the program, but Caswell’s music director and his assistants selected the music to be played, determined the order the selections would be played, and prepared commentary, which accompanied the playing of the selections. After 1979, WNCN continued to broadcast a program under the title Music of the Perpetual Past; meanwhile, GAF used the mark in two newspapers referencing a live concert for its vice president as an extension of the radio program. When Caswell filed an application to register the mark Music of the Perpetual Past for entertainment services, GAF opposed the registration.