Trademarked Final Four phrases OK for use in news, not in ads


Send your questions to Steve Key, HSPA executive director and general counsel, or call (317) 624-4427.

The following questions were submitted by the Brookville American and Brookville Democrat, Ferdinand News, Paxton Media Group:

Discussing business between meetings could violate Open Door Law

Q: A new group of individuals were elected to serve on our local town council and there is currently a great deal of mistrust between the board and the public in terms of transparency. At their last meeting, a proposal was made for the construction or rental of property for a new town hall. This is the first time the public has heard anything about it and it seems to be moving at an accelerated pace. There have been accusations from the public and other local media sources that town council members have met outside of public meetings to discuss this; however, there was an executive session held a few weeks ago, which I believe is where the majority of the conversation likely occurred. Based on the executive session notice, do you believe there might be an Open Door Law issue?

A: The executive session notice references the provision in the Open Door Law that allows a governing body to have an executive session to discuss strategy concerning the purchase or lease of property. The rationale is to keep from whom it is negotiating with what the top dollar they are willing to pay so that they hopefully can save taxpayer dollars by getting a lower price. What’s odd is you said the proposal discussed in public was to construct or rent space for a new town hall. (If they own the current town hall, then there would be no negotiations to trigger the executive session, so a general discussion on whether to build or rent a new facility wouldn’t be appropriate behind closed doors . Now if they rent the current space, they could have had an executive session to discuss their position with continuing the lease. If that negotiation broke down, then it would make sense that the public meeting might have a discussion about their alternative for when the current lease ends.

If a quorum of the council are meeting and discussing public business between the regular meetings, the council would be violating the Open Door Law by failing to give notice of those meetings and allowing the public to attend. They can email each other or have one-on-one phone calls between each other that doesn’t violate the Open Door Law. But they have to be careful not to trigger the serial meetings provision of the Open Door Law – those also are violations of the law.

I suggest reporters be a little suspicious if regular board meetings go off like clockwork with little to no discussion or agenda items. The obvious question is when did they discuss the item and the alternatives to whatever was quickly put on the table and discussed at the open meeting? Democracy generally isn’t that efficient.

So with your sudden proposal to build/rent space for a new town hall, you ask them when was that subject discussed. If they say the executive session, you ask how can that be since they’re only talking general concepts, not current negotiations.

Trademarked Final Four phrases OK for use in news, not in ads

Q: I know the term Final Four is trademarked, but would using Final 4 be allowed in the newspaper?

A: “Final 4” is trademarked by the NCAA along with numerous other phrases associated with the annual basketball tournament such as “March Madness,” so don’t use that language in any advertising unless you’re comfortable that the advertiser has a licensing agreement with the NCAA.

If you’re writing a news story, you can use the Final Four or other catch phrases, but not in promotional or advertising material. And the NCAA is like Xerox and Disney, they all monitor the use of their trademarked terms and are likely to send you a letter if they feel their copyright or trademarks have been violated.

Papers must have a ‘physical presence’ to publish public notices

Q: Does a newspaper need to have a physical presence in a community to remain the newspaper of record for public notices?

A: The answer is yes because eligibility to publish public notices is tied to the newspaper’s United States Postal Service periodicals mail permit. The postal service requires a location where it can come and audit your circulation information to determine whether you have at least 50 percent paid circulation to qualify for the permit and its accompanying discounted postage rates.

You could share office space with another entity, but you do need a physical presence where people can drop off news items and you can have access to your circulation data in case there is a postal audit. Without a physical presence, the postal service will move your original point of entry into the mail stream to the existing physical presence you have elsewhere, which correspondingly moves your location as a newspaper for purposes of eligibility to publish public notices.