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Silverman v. CBS, Inc. - 870 F.2d 40 (2d Cir. 1989)

Rule:

Under the Lanham Act, 15 U.S.C.S. § 1127, a trademark shall be deemed to be "abandoned" when its use has been discontinued with intent not to resume. Intent not to resume may be inferred from circumstances. Nonuse for two consecutive years shall be prima facie abandonment. There are thus two elements for abandonment: (1) non-use and (2) intent not to resume use. Two years of non-use creates a rebuttable presumption of abandonment. 

Facts:

Stephen M. Silverman wrote a script for a musical based on characters that originally appeared on CBS Inc.'s radio programs. Silverman filed a lawsuit seeking a declaration that these radio programs broadcast before 1948 were in the public domain, and CBS Inc. counterclaimed, alleging that Silverman's script violated CBS Inc.'s copyrights and violated the Lanham Act, 15 U.S.C.S. § 1125(a) by infringing various trademarks. The trial court ruled that although pre-1948 radio programs were in the public domain, CBS Inc. had copyrights in scripts for post-1948 radio programs and that Silverman had infringed these copyrights and that Silverman had also infringed CBS Inc.'s trademarks.

Issue:

Did the trial court err in holding that Silverman infringed CBS Inc.'s trademarks in violation of the Lanham Act, 15 U.S.C.S. § 1125(a)?

Answer:

Yes

Conclusion:

The appellate court reversed on the trademark issue, holding that CBS Inc. had abandoned its trademarks through years of nonuse; but on the copyright infringement claim, the court held that copyrights in post-1948 radio scripts provided protection only for increments of expression beyond what was contained in earlier radio scripts. Although parts of Silverman's script infringed these rights, other parts did not.

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