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48 Hours: CBS Has Good Lawyers, Not A Good Case

I am not confused.

That’s going to be a problem for CBS.

Backtrack: Today David Carr published a piece on 48 HR Magazine, the new Internet-to-publishing experiment in which a knot of plucky San Franciscans crowd-sourced an entire magazine via their extended social graph and had it written, photographed, assembled, edited, art-designed, and completed from top to bottom in 48 hours. 60 pages later, it was available for purchase on MagCloud for $10. Voila!

Except! The name “48 Hours” is also the name of a TV show on CBS. Uh-oh!

On May 11, Lauren Marcello, the assistant general counsel at CBS sent a cease and desist letter, noting that “CBS is the owner of the rights in the award-winning news magazine televison series, ‘48 Hours,’ and its companion series, including ‘48 Hours Mystery,’” adding later in the letter, “your use is unlawful and constitutes trademark infringement, dilution and unfair competition …” along with a lot of other complicated, vaguely threatening legalese.

Carr reports that the 48 Hr. mag crew never cleared the name.

“To be honest, none of us even knew that there was still a program called ‘48 Hours,’ so it never crossed our mind,” co-founder Mat Honan told Carr.

Too bad, right? Right! Except, too bad for CBS. In my former-lawer-just-refreshed-on-trademark-law-on-Wikipedia judgment, CBS will have a hard time proving this case.

Why? There’s no confusion.

48 Hours (and 48 Hour Mystery) is a TV show. 48Hr. Magazine is a magazine. In order for CBS to show trademark infringement, they have to show that there is a legitimate likelihood of confusion on the part of consumers to think that the new product or service bearing the trademark is part of the products or services originating from the trademark owner.

Here is the cover of 48 Hour magazine:

Here’s 48 Hours (well, 48 Hour mystery, which is the first Google result – the 48 Hours page didn’t have a logo that I could find):

Here, just for fun, is the poster for the movie 48 Hours starring Eddie Murphy and Nick Nolte:

Confusing? Not really. But – what if people who actually know about 48 Hours just hear that there’s a magazine and get confused?

Unlike Honan, I did know about 48 Hours the TV show — not just from the ether of media awareness, but more recently from the news peg of the whole sordid Letterman affair. And I knew about 48 Hr. Magazine, more than just casually &mdahs; enough to run this long and detailed interview with Honan only yesterday.

So was I confused? Nope. Did it even occur to me to make the connection between 48 Hours the show and 48 Hr. the magazine? Nope. Do I think there’s a connection now? Nope. Am I rolling my eyes at CBS? Yep.

Anyhow. I woudn’t sell this to you at an hourly rate (and please never rely on it and I am not counseling you to rely on it!), but — that’s my esteemed and educated legal judgment. And if you don’t believe me, you can go check Wikipedia, too.

48 HR Magazine Experiment Big Hit, Except for That Part About the Lawyers [NYT]
Mat Honan: 48 Hours Is Your New Bicycle [Make Work Meaningful]

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