A Trade Dress Approach to the Protection of Radio Brands

Over the past ten to fifteen years the radio industry has undergone dramatic changes in terms of both programming and the economic model that underlies the industry’s very existence. Despite the widespread industry consolidation that took place after the passage of the Telecommunications Act of 1996, advances in technological innovation have lead to a diversity of new media options that have changed the way that people consume radio programming and the way advertisers reach their target audiences. Broadcasters have responded by creating niche-oriented formats designed to attract more narrowly defined segments of the listening population. As the programming becomes more complex, and secondary markets in the packaging and licensing of such formats begin to develop, there has become a need to articulate a mechanism by which broadcasters may protect radio formats as intellectual assets. While conventional intellectual property concepts are sufficient to protect various aspects of a radio format, broadcasters have traditionally had difficulty asserting protection for complete formats. This paper articulates a theory by which broadcasters may assert protection on a complete, sufficiently distinctive format. By conceptualizing the role of a radio station as a player in a two-sided market, using programming as merely a mechanism to secure listeners of a specifically defined demographic profile, then “selling” access to those listeners to advertisers, it becomes possible to consider the station’s format as its trade dress, best categorized as a tertium quid, the phantom third category of trade dress (in addition to product packaging and product design) raised by Justice Scalia in Wal-Mart Stores, Inc. v. Samara Brothers. Using conventional trademark and trade dress principles, this paper then argues that a radio station’s format is analogous to the interior motif of a restaurant or retail store and, provided the format can meet the threshold requirements, should be entitled to protection