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.
- Published by David Knox
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A Community TV presenter in Perth is accusing Network TEN of trademark infringement, using the title Couch Time on ELEVEN when he has had The Couch on air for over ten years.
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?'”
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- Tagged with Couch Time, Masterchef, On the Couch, The Circle, The Couch
36 Responses
Just a quick comment for those people who say what’s in a name , clearly allot . So many people come up to me and say Oh yeah I know your show your on Channel 11 in the afternoons and I have to constantly tell them that isn’t my show,
The problem is people don’t get into detail they hear the word “Couch” and its on TV.
This is why I am so annoyed with TEN , and I am not greedy at all people one commercial on a TV station can attract $10,000 and I am only asking for what’s fair , I am a community TV program helping people who cant afford to have exposure whether they be Charities , Authors and people wanting experience singing on TV .
If I was greedy and only after money I would never have settled at a fee of $10,000.
TEN need to accept that they were the ones that accepted 2 years ago that they needed to pay for the use of my Trademark to keep their show on air.
I have never stopped them or tried to and all I am saying is that if they accepted that 2 years ago why have they decided now that I don’t matter.
Just for the record the increase to $15,000 was never discussed with me or challenged by TEN they have never had the courtesy to sit down with me and say “We cant afford the increase” so people be fair to me .
@james29
Mate you are so one eyed towards Ten, it is nearly an embarrassment.
The only ones to make money out of this are the lawyers,as per usual,
Who knows if if he hadn’t raised the anti to $15,000 instead of leaving it at the established and accepted obligatory payment of $10,000, everything may not have come to the bean counters attention as a 50% increase, especially if they are probably trying to justify their own existence to Ten’s new management team, so if greed was his only motive, he probably deserves all he now doesn’t get.
I am a firm believer in Karma, and if anyone has done the wrong thing, they may later learn that an ill gotten victory, may eventuate in more costly and deserved repercussions from a totally source.
Best of luck to anyone who has done the right thing, and I will retire to ‘My Couch’, and await future outcomes
Hopefully Fred wins this and Couch Time is taken off air. It’s dreadful.
Late at night they put to air a blooper reel of the hosts mucking around in between takes and supposedly hilarious bloopers which just aren’t funny at all. In fact, they’re a little sad.
If these couple of minute spots between Happy Days and The Love Boat are supposed to be the highlights of the show, it just shows why Ten are failing miserably. Not a clue as to what entertains people.
I completely side with 10 on this one. I don’t think any of the Australian audience is getting the two confused and i don’t think ten should have to pay.
Sounds like typical bully boy tactics by the big corporations against a smaller business. 10 should just suck it up and pay up.
Didn’t Paris Hilton try to trademark ‘it’s hot’ and Donald Trump ‘You’re Fired’? Now they were ridiculous.
God couch time is the most embarassing piece of 5 mins on 11! Guys talking crap trying to make convo is not interesting at all and im amazed they are still there
I thought us Aussies were supposed to get behind the underdog..good on ya Fred for standing up for yourself
With Ten’s fortunes as they are, i’m not sure who has more power here.
Very interesting! Hope it all works out for you Fred.
Bless.
@Hayley7 Yes you can, you can trademark a name around a concept or usage. Similar to how Coke made It a trademark of Coca-Cola years ago (Coke is it), that way no-one else could use it in the same way as they do (ie Leggo’s Pasta Sauce is it).
Toys R Us could have trademarked the use of that R and no-one else would have been able to use it in that context (pity they didn’t really), it is how that law works.
You come up with a concept (based around a show or anything), marking campaign or name and you have the right to protect its use to you or your company.
@TheCouch – I agree, it sucks. And Ten must be really hard up if they’re baulking at $10k. You probably pissed them off by asking for 50% more but it doesn’t justify them not paying you anything.
If your case is as sound as it appears, hopefully some legal firm will see a benefit in offering you assistance pro bono or at reduced rates, perhaps taking a cut of any damages that might be won.
@Hayley7 – it’s actually called the “English” language. And you had the temerity to unfairly call someone else an idiot.
Why wouldn’t Ten just come up with a different name from the outset?
The idea of paying even the measly sum of $10,000 is ridiculous for the word ‘couch’.
Something more proprietary, like the word ‘MasterChef’? Then I’d see the benefit.
This is the most stupidest thing I’ve ever heard. He should be grateful that he got paid for the first two years.
Seriously. It’s the word couch. How it’s legal for someone to dictate/charge any shows which use that word is beyond me.
The idea of people sitting on a couch on a TV show is nothing new.
The Couch / Couch Time – they’re different things.
MasterChef / MasterChef Perth – seem like the same thing.
Oh, and then in the comments he made another analogy, this time with the titles being exactly the same, but with different time slots? Seriously? Can you not see the difference?
It seems this is all about getting as much money as he can, not about his “trademark”. Hence the request for a $5000 raise.
It is staggering to read some of the comments on here who clearly no nothing about this type of thing.
@Hayley yes you can trade mark words.
I dont now this guy but he had an idea, he spent money on trademarking it, it was approved and now it is his. Trademarking is there to protect people and companies that spend money developing brands and names so I cant go out tomorrow and create a drink called Coke.
The whole issue surrounds an idea that was created by me and a concept which I created.
Ten created their program and used the similar name and they had no right to keep using the name without continuing an agreement.
They accepted 2 years ago that to use the name on their show that they had to enter into an agreement so now why have they decided to throw that out the window.
It should not be about who has the biggest wallet but instead is about who did the hard work to register a name and protect a concept and idea and I did.
I appreciate people don’t understand trademarks but if someone passes themselves off as someone else then its not right.
Imagine what would happen if I started a new show called Ten News that is on at 10pm would the Ten Network say that’s ok that’s fine …
I think not….
Its time for people to stand up against hings that are not right or fair and sometimes we all need to say No you cant just walk all over people…
Agree with Bobby Lee…it’s just really interesting to me that he (or anyone) could ‘own’ an idea that was around long before his own show.
But regardless, he has trademarked it, so good luck to him.
People obviously have very little understanding of tradmark law is on this site.
From your article is sounds like he has a case…but I don’t understand how someone can trademark the idea of a light entertainment show being hosted from a couch? Wasn’t there a kids show in the 90s called ‘Couch Potato’ that was similar to ‘Couch Time’? 10 years before ‘The Couch’. It bookended various shows and had celebrity guests etc.
I think Couch Time is pretty awful, so I’m not trying to defend it, but I’m just curious…
You can’t accuse someone of a trademark breach in 1994 when the trademark isn’t registered until 2002.
What about ABC’s 1994 show Couch Potatoes?
Or “the big comfy couch” imdb.com/title/tt0136634/?ref_=fn_al_tt_7
They agreed to pay $10000 a year, he tried to lift it to $15000… If I was TEN I would have said “F$#* you!” as well. He tried to play dirty, so they have thrown it in his face.
I did read the whole article… but just because there’s legal precedent for something doesnt mean its not absurd
His is called “The Couch” and theirs is “Couch Time”. Two different titles imo
Does MasterChef pay trademark fees to Iron Chef cos they use the word ‘chef’?
People have to have the right to make up new titles. Just because it uses the same word as his doesn’t mean they’re copying him.
TEN went hard on shopping centres and schools using the word Idol in their own talent quests some years ago. Again this is a trademark infringement, not a copyright one which is what you are referring to. TEN paying him for 2 years indicates even they knew that.
@Hayley7 – ” You can’t stop people from using a particular word.”
Of course you can. Ask Dick Smith.
“it’s called the enligh language”. ??
He should call their bluff as I doubt TEN could pay their legal bills 🙂
“I invented this name in 2002”
So, you invented the word “couch”???
This is ridiculous. You can’t stop people from using a particular word. A particular phrase that you’ve trademarked, yes. But not just any and all words within that. It’s called the enligh language, we’re all allowed to use it.
Money hungry idiot
Hayley7: Wrong. It is his trademark. Even the lawyer advice I have referenced indicates the difference between Trademark and Copyright. You should read the article properly before calling someone an idiot. An apology would not go astray?