TEN vs Community TV in legal battle for the Couches
The Couch host Fred Mafrica alleges TEN is in breach of trademark for calling an ELEVEN show Couch Time.
Fred Mafrica, host and producer of the light entertainment show, says TEN paid him a license fee for two years to use the name, but is no longer paying him and he believes they are forcing him into a legal battle he cannot afford.
The Couch began in 2002 and Mafrica has had the name trademarked with IP Australia under Class 41 which covers Radio and TV Broadcasting. This protects him from similarly-titled programmes emerging.
“That includes any show that has the name as The Couch which has interviews, entertainment, giveaways,” he said.
When afternoon show Couch Time with hosts Labby & Stav began on ELEVEN in 2011, TEN agreed to pay a license fee for the name at $10,000 a year. After two years he tried to lift the price to $15,000 but Mafrica says the new TEN management has refused.
“TEN turned around and said ‘No, we’re not going to be renewing our deal. We don’t want it at any price. We’re going to keep using our name but we’re not going to pay you,'” he said.
“As from January of this year TEN is in breach of trademark because they are continuing to do what they’ve done but they haven’t changed the name of the show.
“My lawyer wrote to them and said ‘My client is still willing to negotiate a licensing agreement at the same price and we’ll give you until the 31st of January.” But basically they wrote back and said they weren’t interested and would keep using the name, take us to court.”
Mafrica is also facing a second battle with Austereo’s MIX 94.5 in Perth which has a radio show called The Big Couch. It too has been paying him a license fee for 8 years for the name but is also refusing to renew its agreement beyond June.
“I knew there was something up so I went and registered the trademark Big Couch and I also registered Couch Time. On the premise that I already owned The Couch I knew IP Australia would approve it. It would stop them trying to use the name and never giving me anything for it,” he said.
“I paid all the fees but 3 days before they were due to be registered Channel TEN and Austereo put oppositions into those trademarks.”
He is suspicious that the two objections are linked.
“I got my opposition papers from Austereo on Christmas Eve and ten minutes later the papers from TEN. It might be coincidence but it’s funny how they both opposed the registration of those trademarks.
“Channel TEN was using the same Austereo licensing agreement just with different name changes.”
Having already paid a lawyer for legal advice so far, Mafrica is accusing both media companies of trying to back down from a fight he cannot afford.
“Basically I’m now in a position where I have to take them to court to get justice but I don’t have the money to take them to court, because as you can imagine it’s not cheap,” he said.
“It’s not a fair way of running a company and it’s not Australian. I invented this name in 2002 and registered it. I never made millions of dollars out of it, but it was my idea.
“They took advantage of the cheap fee that I gave them. They took advantage of my generosity. I could have said 8 years ago ‘I’m not going to let you use it, drop the name.’
“With the two trademarks I was actually going to register them and sell them to them. There was always an intention to help them but they’ve gone nasty.”
Ironically Mafrica is also a TEN shareholder.
“I bought them at $1.60 and now they’re only worth about 30c,” he said.
“I don’t know about the new executive who’s come on board, but what makes me really angry is all the money they’re wasting on shows and redundancies and getting rid of people. Then they’re quibbling over $10,000.
“I’ve promoted their shows, I went over to The Circle when it was finishing and did a story on them.
“When (TEN newsreader) Charmaine Dragun died it was my footage that TEN used because I was the only one who had an interview with her. We’ve always played ball with them.”
TEN would not confirm if it had been paying a license fee to Mafrica or whether it had not been renewed.
A TEN Spokesperson told TV Tonight, “We have never discussed confidential commercial agreements in public and we are not about to start now.
“But TEN does not consider that it requires a licence from Mr. Mafrica in connection with Couch Time.”
But Media & Entertainment lawyer Shaun Miller said Mafrica has a strong case.
“It is arguable that by Channel 10 naming its television programme Couch Time, there has been a breach of the registered trade mark The Couch under the Australian Trade Marks Act. Couch Time is deceptively similar to the name The Couch in relation to the provision of entertainment services,” he said.
“However, there is no breach of copyright under the Australian Copyright Act. Titles and names of films, television and radio shows and books are not generally accepted as having copyright protection under the Australian Copyright Act because insufficient ‘judgement, effort and skill’ has gone into their formulation for them to qualify as ‘original literary works’ in themselves.”
Foxtel’s On The Couch has been able to operate because it too began in 2002 but without an objections from Mafrica and falls under simultaneous use.
Mafrica continues as host of his weekly community TV show on West TV. But he holds little hope of reaching an outcome with TEN.
“They’ve gone dirty and grubby and they don’t value people anymore,” he said.
“If I started a show called MasterChef Perth, you don’t think they’d come after me and say ‘That’s our name?'”