Much has been written in the Canadian popular press in the last week respecting “The Hockey Night in Canada Theme”, sometimes called “The Hockey Theme” – the familiar music which has accompanied broadcasts of the Canadian Broadcasting Corporation’s “Hockey Night in Canada” telecasts nearly every Saturday night during the hockey season, for the last 39 years. The music is well-known to most Canadians, hockey-lovers or not: it is frequently referred to “Canada’s Second National Anthem.”

Late last week, it appeared that negotiations to renew the recently expired license agreement between the CBC and Copyright Music and Visuals (agent for the rights-holder, Dolores Claman) fell through: Copyright Music and Visuals announced the CBC had elected not to renew their license, ending their long relationship with Claman. The popular press quickly picked up on the news: articles bemoaning the end of the long and storied history of the song on the CBC filled the weekend papers; hockey fans on radio call-in shows and on the internet grieved the loss of the song; Facebook groups were organized to prepare petitions for the “Preservation of the Hockey Night in Canada Theme”.

With a new week, came new hopes: on Monday morning, the CBC announced it had appointed a well-known entertainment lawyer to assist it in making a deal for a new licensing arrangement. Then, in a somewhat surprising move, rival network CTV (owner of the popular TSN and RDS sports stations) announced it had “saved” the song, completing a deal that, according to press reports, gives it the right to use the song “in perpetuity” in association with its NHL hockey broadcasts, as well as in association with its hockey coverage as part of the 2010 Olympics and Paralympic Winter Games.

While CTV cannot, under Canadian copyright law, lock up the rights to the song in perpetuity, it may have secured exclusive use of the song for at least the next 50 years. However, CTV’s proposed use of the song implicates some interesting issues under Canadian trademark law.

There can be little doubt that, as a result of nearly 40 years of use, the song has become closely associated not merely with hockey, but with the CBC’s flagship “Hockey Night In Canada” broadcast. The CBC frequently displayed its logo as well as the Hockey Night in Canada logo while the song was playing as part of its telecasts. In addition, members of the public commonly refer to the song as the “Hockey Night in Canada Theme,” and Copyright Music and Visuals (agents for rights-holder, Dolores Claman) even operate a website relating to the song, titled “Hockey Night in Canada Theme.”

Through its extensive use, it would appear likely that the CBC has acquired some trademark-related rights to the song. Section 7(b) of the Canadian Trade-marks Act provides that no person shall “direct public attention to his wares, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his wares, services or business and the wares, services or business of another.” There is a similar cause of action under Canadian common law, called passing off. In this light, CTV’s use of the song as part of its broadcasts could violate the CBC’s rights.

Conceivably, the extensive media coverage paid to the transfer of these rights issue will, to a degree, reduce the likelihood of confusion. In addition, CTV has announced plans to reorchestrate the song – though network representatives offered assurances that “it will be exactly the same tune.”

For its part, the CBC appears somewhat less than pleased. CBC Sports Executive Director Scott Moore stated: “Frankly, we weren’t, I think, going to be able to make a deal because there weren’t two willing participants.” He went on to note “The song is going to be forever associated with Hockey Night in Canada and CBC. So I think CTV, in many ways, was smart to pick it up, but every time it’s played, people are going to think of our broadcast on Saturday night.”

If the CBC does attempt to exercise its trademark-related rights against CTV, we’ll let you know. Until then, hockey fans, take heart: it is only three short months until the puck drops again on another season of NHL hockey, and that has to be music to your ears, whomever may be playing the tune.