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Fox News is in the news these days largely because of fake news.
Discerning the real news is becoming as confusing as distinguishing trademarks, particularly where Fox News is concerned. In Twentieth Century Fox v. Empire Distribution, the company said its "Empire" show did not violate Empire's trademark.
In a word, the U.S. Ninth Circuit Court of Appeals said, "correct." The explanation, like sorting out fake news, is a little more complicated.
In 2015, Fox released a "Empire," a fictional music company named "Empire Enterprises." Starring Terrence Howard, the show is about a hip hop label based in New York.
Fox has promoted the show and its music in live performances and on radio. The company also brand "Empire" with consumer goods, such as shirts and glasses.
Empire Distribution, founded in 2010,is a real record label that records and releases urban music, including hip hop, rap and R&B. The company has promoted artists such as Snoop Dogg and Kendrick Lamar.
In response to a letter from Empire Distribution, Fox filed suit in federal court for a declaratory judgment that its show did not violate the Lanham Act. Empire countered with trademark infringement and related claims to resolve the issue about who had rights to the name.
Generally, courts apply a "likelihood-of-confusion test" in trademark infringement cases. But when the allegedly infringing use is in the title of an expressive work, the Ninth Circuit applies the test in Rogers v. Grimaldi.
Under the first prong of the Rogers test, the title of an expressive work does not violate the Lanham Act if the title has artistic relevance to the underlying work. The Ninth Circuit said Fox used the common English word "Empire" for artistically relevant reasons.
"The show's setting is in New York, the Empire State, and its subject matter is a music and entertainment conglomerate, 'Empire Enterprises,' which is itself a figurative empire," the judges said.
Under the second part of the Rogers test, the appellate panel said, the show's name did not mislead consumers about the source of its content.
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