Preliminary injunction stops Ticketmaster-Citysearch from using phrase "Best Of."
New Times Inc. won the first round in its battle with Ticketmaster-CitySearch over use of the phrase “Best of Phoenix.” On Nov. 15, a Federal judge issued a preliminary injunction stopping Ticketmaster from using the phrase, which New Times registered as a trademark in 1997.
Although the case is still pending, New Times is likely to prevail if it ever goes to trial, according to legal experts. To convince the court to issue the preliminary injunction, New Times had to prove that it is likely to win the case on its merits, and the same judge who ruled on the injunction will be on the bench for the remainder of the case.
The dispute between the alternative newspaper chain and the online city guide flared up last year when Ticketmaster began publishing a feature on its Web site called “Best of Phoenix”. New Times’ flagship Phoenix paper has been using that exact phrase since1979 and its use by another company would likely cause “confusion, mistake and deception of consumers,” according to the New Times complaint filed in February in U.S. District Court for the District of Arizona.
On its Web site, Ticketmaster publishes a “Best Of” feature for 34 different cities. In at least 18 cases, they use the exact same phrase as a local alternative newspaper to identify the feature, which has led to disputes with other AAN members, such as Gambit Weekly in New Orleans and the Austin Chronicle.
During the court hearing on its motion for a preliminary injunction, New Times argued that local residents recognize “Best of Phoenix” as a New Times product, according to Senior Vice President Scott Spear. To buttress its case, the company presented research indicating that 25 percent of all people 18 to 49 years old — unaided by a multiple choice questionnaire — thought of Phoenix New Times when they heard the term “Best Of Phoenix,” Spear said.
A Ticketmaster spokesman said company policy prevented him from commenting on pending litigation.
Ticketmaster has not yet removed the “Best of Phoenix” link from its Web site because the judge must first set the amount of a bond to be posted by New Times, said New Times counsel Dick Segal. Once the judge acts and the bond is filed, the injunction will take effect. Segal expects that to happen in a matter of weeks.