While it’s a great song, Kenny Rogers’ classic The Gambler doesn’t provide much guidance on winning a game of poker.
Step 1: Know when to hold ’em
Step 2: Know when to fold ’em
Step 3: Know when to walk away
Step 4: Know when to run
Step 5: Never count your money at the table
You’re probably better off just watching the movie Rounders. What Kenny fails to explain anywhere in the song is which facts contribute to knowing whether to fold ’em or hold ’em. Or alternatively, whether to walk or run (step 5 is pretty unambiguous, though). If it was as simple as knowing when to hold or fold, poker would be a pretty boring game. Bluffing plays a major role, both knowing when to bluff and, perhaps more importantly, against whom to bluff.
Bluffing isn’t just a skill in poker, it is a skill in all types of negotiations, including negotiations of legal disputes (and for our purposes, trademark disputes). In some ways, the entire concept of “trademark bullying” is a bit like bluffing. The big company with a lot of money is bluffing with regard to the strength of the legal claim. The hope is that the smaller company will fold ’em. Even if the smaller company knows that they have a winning argument, they may not have the chips to ante up. But what happens when it is the smaller company bluffing the bigger company?
Well, one recent example involves Fox’s hit show Empire, which revolves around a Hip Hop record label named “Empire Entertainment.” The series premiered in January of 2015 and set all sorts of records a television show in the post-Netflix/DVR world. All great news for Fox. That is, until they received the dreaded cease and desist letter.
You see, there is a music label in the real world called Empire Distribution. They contacted Fox and demanded that Fox rename and provide Empire Distribution with payment in the form of millions of dollars (first 8, then 5) or, alternatively, provide Empire Distribution with free publicity by featuring the label’s artists as guest stars on the show. Fox chose to call their bluff, filing a declaratory judgment action.
But will Fox be successful? Assuming that the marks are confusingly similar, can there be infringement for use of a confusingly similar name as a fictional entity? A recent case from the Seventh Circuit suggests not. The case of Fortress Grand v. Warner Bros. involved a computer software company that marketed a program titled CLEAN SLATE, which movie buffs may recall is the name of the secret program in the recent Batman flick, The Dark Knight Rises. The district court dismissed the claim and the Seventh Circuit affirmed.
The facts may not be quite so clear with this clash of the Empires. After all, Warner Brothers never sold a CLEAN SLATE software program. However, Fox does offer tracks from the cast of Empire for download on iTunes. While that might help Empire Distribution, it may not be enough. After all, Fox isn’t actually operating a record label under the name Empire. And besides, “empire” isn’t exactly a fanciful mark. It is a commonly utilized English word. I can remember a few movies with empire in the name, in particular, Empire Records (all about a record store) and Star Wars: the Empire Strikes Back (not about a record store). If I were a gambler, I think my money would be on Fox.
However, we’ll have to wait and see whether Empire Distribution decides to fight back. But as far as Fox goes, Empire was renewed for a second season. After the show’s success, I’m guessing they’re all-in.