## Facts

- Caswell-Massey Co. (Caswell) owned and operated WNCN, a classical music radio station.
- In 1975, GAF Broadcasting Co. (GAF) approached Caswell about sponsoring a radio program featuring classical and Baroque music.
- GAF came up with the program title “Music of the Perpetual Past,” and the program aired on WNCN under that title.
- From 1975 through 1977, GAF sponsored the program.
- During GAF’s sponsorship, WNCN’s program guide listed “Music of the Perpetual Past” and noted that it was sponsored by GAF.
- GAF’s vice president wrote advertising copy for the sponsored program.
- Caswell’s music director and assistants selected the music, set the order of selections, and prepared commentary to accompany the broadcast.
- In the summer of 1977, GAF stopped sponsoring the program; Caswell continued broadcasting a classical/Baroque program under the “Music of the Perpetual Past” title and ran spot commercials during that time slot.
- GAF resumed sponsorship in the fall of 1977 but ended sponsorship in 1979.
- After 1979, WNCN continued to broadcast a program under the same title; references to GAF as sponsor in the program guide ended when sponsorship ended.
- After the sponsorship ended, GAF used “Music of the Perpetual Past” in two newspaper items referring to a live concert involving its vice president, described as an extension of the radio program.
- Caswell applied to register MUSIC OF THE PERPETUAL PAST for entertainment services (a radio program), and GAF filed an opposition in the TTAB.

## Issues

1. Who owned the service mark MUSIC OF THE PERPETUAL PAST for radio-program entertainment services: the sponsor that proposed the title and supplied advertising copy, or the station that produced and broadcast the program?
2. Did GAF’s sponsorship activities and later newspaper references establish priority or superior rights that would bar Caswell’s registration?

## Decision

- The TTAB dismissed GAF’s opposition.
- The TTAB determined that Caswell, as the station owner and broadcaster, was the proper owner of the mark for the radio entertainment services and could seek registration.

## Legal Principles

- Service-mark ownership generally belongs to the party that actually renders the identified service to the public and controls its nature and quality.
- Suggesting or creating a program title, paying for sponsorship time, or preparing advertising copy does not by itself establish ownership of the mark for the underlying entertainment service when another party controls the content and delivers the broadcast.
- Control over programming decisions—such as music selection, sequencing, and on-air commentary—is strong evidence of control over the service’s quality and therefore supports ownership.
- Use of a program title in a station’s broadcasts and published program guides is service-mark use by the station for its entertainment services.
- Continued station use of the program title during periods when a sponsor withdraws, and after the sponsor relationship ends, supports the station’s claim of ownership and priority as against the sponsor.
- Limited, later uses by a former sponsor outside the broadcast context (such as a small number of newspaper references) may be insufficient to establish independent rights in the program title for the broadcast entertainment service.

## Conclusion

GAF Broadcasting Co. v. Caswell-Massey Co. holds that a radio station that controls and provides the programming to listeners owns the service mark used as the program title, even if a sponsor proposed the title and supplied advertising copy, and even if the sponsor later makes limited uses of the phrase outside the broadcast.


GAF Broadcasting Co. v. Caswell-Massey Co., 215 U.S.P.Q. 654 (1982)