Dish Fights to Own ‘TV Everywhere’

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Dish Network still insists that it,
alone, has the right to use “TV Everywhere” — a
move that has cable operators and others in a tizzy.

In a trademark fight that could stretch into next
year, Dish has argued that the term is neither
generic nor merely descriptive. Moreover, the operator
claims its use of “TV Everywhere” has become
successfully associated in consumers’ minds with
the satellite-TV operator’s Slingbox-enabled DVRs.

Dish filed for trademark protection on “TV Everywhere”
on Sept. 17, 2009, and, after procedural
delays, the U.S. Patent & Trademark Office published
its application for opposition last fall.

In February, Time Warner Inc., the five biggest
cable operators — Comcast, Time Warner Cable,
Cox Communications, Charter Communications
and Cablevision Systems — as well as DirecTV
and Hulu filed oppositions with the U.S. Patent
& Trademark Office’s Trademark Trial and Appeal
Board. They all complained that “TV Everywhere” has
been used generically by the industry to describe authenticated
online video services, in some cases prior to Dish’s
trademark application (see “‘TV Everywhere’ Claim Draws
Flames,” March 5).

This month, Dish filed replies to the objections from the
MSOs, Hulu and DirecTV with the Trademark Trial and
Appeal Board, effectively denying that other companies
have used “TV Everywhere” generically in reference to
their products or services over the last several years.

“Given the duration, extent, and nature of [Dish’s] usage
of the ‘TV Everywhere’ mark, applicant’s mark ‘TV Everywhere’
has attained secondary meaning,” Dish said in the
May 4 filings. “Applicant has been successful in creating
a commercial impression for the mark through its
advertising, and the consuming public recognizes the
mark ‘TV Everywhere’ as a source indicator for Applicant’s
services.”

A Google search of the exact phrase “TV Everywhere”
yielded 10.5 million results. As Hulu pointed out in its
complaint, Dish shows up as the No. 2 result — after
Wikipedia’s entry on the term, citing the June 2009 press
conference held by Comcast and Time Warner Inc. during
which “TV Everywhere” was generically used by both
companies.

Dish currently uses “TV Everywhere” to promote its
Slingbox products, which provide access to live and recorded
video programming to multiple devices over the Internet,
plus the DishOnline.com website and Blockbuster
@Home hybrid service that offers DVDs-by-mail and
video streaming.

Dish has not yet filed a reply to Time Warner Inc.’s opposition,
instead requesting and receiving an extension until
June 3 to file an answer. In its Feb. 24 complaint, the media
company alleged that it had actually coined the “TV
Everywhere” term.

The USPTO’s Trademark Trial and Appeal Board has established
a schedule in the disputes under which discovery
would start this summer and run through December
2012. Currently, trial dates are set for 2013.

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