If you’re anything like my wife and me, you spent most of last weekend glued to the couch watching Season 4 of House of Cards (we’re almost done—no spoilers!)
Of course, not everybody likes the show:
Annual PSA: House of Cards is bad and bad for you. If you can watch HoC, then you can also stream The West Wing instead.
— Lucas O’Connor (@lucasoconnor) March 5, 2016
Also in the “not a fan” column is D2 Holdings. Since June 23, 2009, D2 has owned a U.S. trademark registration for HOUSE OF CARDS for “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.” D2 licenses the HOUSE OF CARDS trademark as the name of a radio show about the gaming industry.
The Netflix show’s first season premiered on February 1, 2013. House of Cards is distributed by MRC II Distribution Company, who were named as the Defendant in a trademark infringement lawsuit initiated by D2 Holdings, according to The Hollywood Reporter.
MRC II had tried, and failed, to obtain a trademark registration for HOUSE OF CARDS. Those applications were rejected because of “likelihood of confusion” with D2’s prior registration. Likelihood of confusion is the standard that’s applied when there’s a claim of trademark infringement.
I wasn’t able to obtain a copy of D2’s initial complaint (if you have it, please send me a link), but according to the THR story:
Examples of infringement listed in the lawsuit include run-of-the-mill merchandise like t-shirts and hats, as well as House of Cards slot machines made by International Games Technology, which is also named a defendant in the suit.
How Did This Happen?
It’s hard to imagine Netflix and MRC II didn’t know about the prior registration for HOUSE OF CARDS. One would assume that a simple search of the trademark office website would be performed prior to creating a multimillion dollar TV series. But who knows?
Maybe the parties have been trying to negotiate a settlement behind the scenes, and this lawsuit was filed when those negotiations broke down.
Maybe MRC II and Netflix assumed that the services were sufficiently different—a radio show about gambling and poker versus a TV show about politics—that they could survive this kind of trademark lawsuit. But that seems like a weak thread on which to proceed with such a significant investment.
Finally, it’s worth noting that House of Cards, before it was a Netflix show, was adapted from a U.K. series that ran on the BBC in 1990, which was itself based on a 1989 novel with the same title. This doesn’t “cure” the potential problem that Netflix and MRC II are facing. Those long-ago products didn’t prevent D2 from filing and protecting the trademark HOUSE OF CARDS for their services. Even if the titles of the BBC show and the novel were protectable as trademarks in the U.S. (which is problematic in itself), trademarks don’t last forever if they’re not in continuous use, so those marks would presumably have been abandoned well before D2 began using the brand name.
