Trademark Lawsuit is a House of Cards

Scale of justice, gavelIf you saw a slot machine labeled “House of Cards, Welcome to Washington” with Kevin Spacey’s face plastered all over it, would you be likelier to associate that slot machine with the Netflix TV series House of Cards, which stars Kevin Spacey, or with House of Cards the radio show, starring Ashley Adams, author of Winning 7-Card Stud?

The answer to that question is at the heart of a lawsuit filed by a company called D2 against Media Rights Capital (MRC), production company for the Netflix show.

Trademarks and Generic Phrases

Trademark law provides for different levels of protection for different kind of words. A totally arbitrary word — such as “Exxon” — generally enjoys a very high degree of trademark protection. At the other end of the spectrum, a completely generic term in normal usage — “Computer” brand computers, for example — cannot be trademarked at all.

Using a common phrase in a very specific application is in a sort of middle ground. Such phrases can be trademarked, but protection is clearly limited to that specific application, and trademark infringement only occurs when there is likely to be confusion regarding who is presenting a particular product or offering.

For example, the phrase “House of Cards” is used in a large number of trademarked applications. Searching the database of trademarked terms yields thousands of hits for applications for the use of “House of Cards,” including not only both the radio show and TV show mentioned above, but other products as diverse as indoor tanning products, wine, playing cards, carrying bags, bar and restaurant services, games and playthings, and many more. Each of these trademarks is for a very specific usage.

D2 versus Media Rights Capital

D2 has a trademark on the use of “House of Cards” in the following usages:

Entertainment in the nature of an on-going special variety, news, music or comedy show featuring games of chance and poker broadcast over television, satellite, audio, and video media; Entertainment in the nature of visual and audio performances, and musical, variety, news and comedy shows; Entertainment services, namely, a multimedia program series featuring comedy, action and adventure distributed via various platforms across multiple forms of transmission media; Entertainment services, namely, providing an on-going radio program in the field of gaming and poker.

MRC attempted to get a trademark on “House of Cards” for a TV drama, but abandoned the effort, possibly because D2 already has a trademark that could be construed to include entertainment in the form of a TV show.

We can’t say with certainty how the court will rule, but it seems unlikely that anyone would confuse a “House of Cards” slot machine that features the actors from the TV drama with something coming from a radio show that not many people have ever heard of.

It’s noteworthy that D2 hasn’t tried to sue MRC for trademark infringement for the show itself, presumably because they understand that their mark is focused on gaming and the TV show isn’t. Even though a slot machine is obviously also associated with gaming, the use of images from the TV show may be sufficient to prevent any confusion in the eyes of gamblers using the machines.

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