CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc.

Citation97 F.3d 1504
Decision Date05 February 1996
Docket Number95-2059,WPOR-F,R,Nos. 95-1985,s. 95-1985
PartiesCMM CABLE REP, INC., d/b/a Creative Media Management, Inc., Plaintiff-Appellant, v. OCEAN COAST PROPERTIES, INC., d/b/a/obert Gold, individually and officially as General Manager, Graphics North, Inc. and James Spizuoco, Defendants-Appellees. CMM CABLE REP, INC., d/b/a Creative Media Management, Inc., Plaintiff-Appellee, v. OCEAN COAST PROPERTIES, INC., d/b/a/obert Gold, individually and officially as General Manager, Graphics North, Inc. and James Spizuoco, Defendants-Appellants. . Heard
CourtU.S. Court of Appeals — First Circuit

Anne S. Mason, Clearwater, FL, with whom Mason & Associates, P.A., John H. Rich III, William Sheils, and Perkins, Thompson, Hinckley & Keddy, Portland, ME, were on brief for CMM Cable Rep, Inc.

James G. Goggin, Portland, ME, with whom Verrill & Dana was on brief for Ocean Coast Properties, Inc., et al.

Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.

TORRUELLA, Chief Judge.

CMM Cable Rep., Inc. ("CMM") appeals from the district court's grant of summary judgment dismissing all but one of its claims for federal copyright, trademark, and trade dress infringement and related state law claims. See CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc., 888 F.Supp. 192 (D.Me.1995). CMM brought suit against Ocean Coast Properties, Inc. (radio station WPOR), several of WPOR's executives, and its graphic design consultant (collectively referred to as "WPOR") alleging infringement of CMM's employment theme-based radio promotional contest by WPOR's similar promotion. The only claim to survive summary judgment--copyright infringement by WPOR's direct mail brochure--was tried to a jury, whose verdict CMM also appeals. Also before us is WPOR's cross-appeal from the district court's denial of summary judgment on CMM's only surviving claim. We affirm the district court's summary judgment and the jury verdict. In so doing, we address CMM's copyright arguments but neither address its trademark nor trade dress arguments

as we find those waived. Finally, we decline to address WPOR's cross-appeal.

FACTUAL BACKGROUND

As this is primarily an appeal from the grant of summary judgment, we review the summary judgment materials 1 in the light most favorable to CMM, the nonmovant, drawing all reasonable inferences in its favor. Alan Corp. v. Int'l Surplus Lines Ins. Co., 22 F.3d 339, 341 (1st Cir.1994). Under this review, 2 those materials show the following. 3

CMM produces and markets direct mail promotional campaigns to assist radio stations in preserving and increasing listenership. Operating on a national level, CMM markets its services to radio stations nationwide by sending radio stations sample promotional materials that bear copyright and trademark notifications. Its services are provided on a "market exclusive" basis, as its promotions are only effective if sold to a single radio station in a particular market. 4 CMM's radio station customers spend roughly $30,000 per campaign for CMM to prepare all printed materials associated with its on-air promotion and handle the actual mailing.

At the center of this litigation are two of CMM's most successful direct mail radio promotions, entitled "Payroll Payoff TM" and "Paycheck Payoff TM," which it registered as servicemarks in 1991. CMM owns registered copyrights for its promotional materials prepared in connection with these promotions. 5 Payroll Payoff TM and Paycheck Payoff TM, (collectively referred to as "Payroll Payoff TM"), 6 have been marketed to and purchased by numerous radio stations nationwide, to whom CMM has continuously provided copyright notice regarding its promotional materials. The general idea underlying Payroll Payoff TM is to entice a listener Direct mail radio contest promotions having an accumulating cash prize, such as those involved in the instant case, have certain standard, inherent characteristics, which include: (i) inviting a potential listener to enter the promotional contest, (ii) requiring the contestant to listen to the station to determine the right moment to participate, and (iii) requiring the contestant to telephone the station at a designated time. CMM's principal, Nancy Izor ("Izor"), "borrowed" the idea for its payroll promotions from an earlier radio promotion she heard called "Working Women's Wednesday," in which female listeners called in on Wednesday to be placed on the radio station's "payroll" to earn an "hourly wage" (the "WWW promotion" or "WWW"). Izor had in her possession the radio station's typewritten sheet of contest rules for the WWW promotion, of the kind stations make available to participants upon request. In contrast to the WWW promotion, CMM's version runs all week, is open to men as well as women, and the cash prize accumulates hourly. Another difference is that CMM's version involves supporting "printed collateral" materials; the WWW promotion was an on-air promotion only without any accompanying promotional materials. CMM's direct mail brochures are original work products of CMM.

                to tune into the radio station by promising the listener payment by the radio station of an "hourly wage" if the listener calls in after his or her name is selected and read on the air.  One name is read each hour during a pre-announced time and, if the listener calls in when his or her name is called, the listener goes "on the payroll" or "on the clock" as the radio station's "employee," earning an "hourly wage."   If the named listener does not call within the time limit, the previous successful caller stays "on the payroll" and continues to be paid until replaced by a named listener who does call in on time.  All contestants who successfully go "on the payroll" are eligible for a grand prize drawing at the end of the promotion period.  Listeners enter the promotion by submitting their names to the radio station in response to direct mail pieces containing mail-in or fax-in reply forms.  See CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc., 888 F.Supp. 192, 195 (D.Me.1995);  CMM Cable Rep., Inc. v. Keymarket Communications, Inc., 870 F.Supp. 631, 633-34 (M.D.Pa.1994)
                

WPOR is a popular country music radio station operating out of Portland, Maine, and serving the greater metropolitan area and eight surrounding counties. In the summer of 1994, WPOR contacted CMM to inquire about running one of CMM's payroll promotions with a view to bolstering its listenership ratings. WPOR admitted to having in its possession, prior to contacting CMM, one of CMM's brochures, identified during the preliminary injunction hearing as the brochure prepared for radio station WKIX in Punta Gorda, Florida (the "KIX brochure"). CMM declined to license its promotion to WPOR, out of loyalty to one of WPOR's competitors in the Portland, Maine, market, and also informed WPOR of its copyrights and trademarks for its payroll promotions. After being informed by its independent media consultant, McVay Media Consultants ("McVay Media"), that payroll-type games were not original to or conceived by CMM, WPOR decided to create its own promotion based upon the employment analogy of earning an "hourly wage." WPOR's promotion, entitled "Payday Contest," involved a direct mail brochure as well as various supporting materials, consisting of newspaper and television advertisements, faxes and on-air script.

Competing against other local radio stations for listeners in the Portland-based market, WPOR ran its promotion from late September through December 14, 1994, during a period known in the radio industry as the fall "sweeps period," when the rating firm Arbitron measures the listenership share of each station in the Portland market. Despite running the Payday Contest, WPOR's listenership in the fall 1994 sweeps period declined from its previous levels. CMM received two phone calls from WPOR's competitors inquiring whether WPOR's promotion was produced by CMM.

WPOR's Payday Contest brochure was designed and produced by Graphics North, Inc. ("Graphics North"). Before it was designed, WPOR gave Graphics North's James Spizuoco As the district court noted, a comparison 7 of WPOR's Payday Contest brochure and CMM's KIX brochure reveals that

("Spizuoco") some copy and CMM's KIX brochure and instructed him "not to make it look like [the KIX brochure]." Spizuoco testified that he looked at the KIX brochure and then put it away because he "[did not] want to be influenced by it."

CMM's KIX brochure and the WPOR brochure ... have many striking similarities. Their size (8 1/2" X 14") and folds are almost identical; their layout is the same in the sense that it is horizontal for all but the mailer, which is vertical and appears in a 3"' serrated form to the far right; and the participation steps--1. "FILL OUT," 2. "TUNE IN," and 3. "CALL IN"--are an important textual element. On the first page of both brochures the radio station is identified at the top, the name of the contest comes in the middle, the number of dollars available for prizes comes about three-quarters of the way down, and the last line on the page of each is "JUST FOR LISTENING." In both instances, when the brochure is opened, the top lefthand corner begins "Listen to ..." and then the radio station is identified. At the top right of the open KIX brochure the copy reads "the best in hot new country." Across the top of the WPOR brochure appears "the best in today's hot country and your all time favorites!" At the left side of the open brochure the KIX version states: "Call in, clock in and make $50 an hour!" The WPOR brochure in almost the same position states "Call in ... punch in and you can earn $25 an hour!" Each brochure has an arrow next to that copy with the words inside the arrow: "Here's how." In step 3 of the contest participation process, the KIX brochure states: "Call in, clock in & win!" In step 3, the WPOR...

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