Hard Knocks Over Hard Rock

What can happen when an international corporation goes after a local disc jockey at a college radio station in Amarillo, Texas for trademark infringement?  If the DJ is internet savvy and makes enough noise about it, the corporation may back down.


In the summer of 2010, Brian Basher, music director atKACV FM 90, Amarillo College’s radio station, began hosting a 2-hour weekly syndicated radio program calledHard Rock Nights that airs on over 20 affiliates and in three countries.  In order to promote this show, Basher registered the domain name www.HardRockNights.com.  In November of 2010, the Business Affairs Department of Hard Rock Café International (HRCI), owner of the cafés, hotels and casinos that bear the Hard Rock name, sent Basher a cease and desist notice by email. The notice, cryptically signed by “/ipenforcement/”, demanded that Basher transfer the domain name, take down all content, and cease and desist from registering any similar domain names or using any terms that are confusingly similar to HRI’s famous trademark.


Undeterred, Basher began using Facebook, Twitter, blogs and online press releases to publicize his predicament.  Fans and friends followed suit by drumming up support for the beleaguered DJ.  About a day after receiving the cease and desist notice, Basher received a second letter, this time from the Senior Director of Business Affairs at HRCI, stating that his intended use of www.HardRockNights.com “would amount to non-infringing use of the term hard rock.”  The second notice also revealed that HCRI “automatically issued, via its monitoring service provider, its cease and desist notice.”  Although the second notice thanked Basher for the “additional information” he provided as to how he intended to usewww.HardRockNights.com, Basher insists that he provided no such information to HRCI.  It would appear that HRCI withdrew its notice in response to the negative publicity received in social media.

Automated software may be a cost effective way to initially identify potential infringers, but in this case, spitting out a cease and desist notice without first reviewing the evidence resulted in unwanted publicity and an avoidable retraction.

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