Court Dismisses Trademark Suit Brought By Racetracks Against Gaming Company Referencing Historical Races
from the and-they're-off dept
We don’t see nearly enough good trademark rulings, especially concerning Fair Use, that it’s worthwhile in highlighting those that do occur. A nice recent example of this is a court tossing a trademark action started by several horse racing tracks against a gambling gaming company over the latter’s use of track names. To get just a bit of background on this, Encore Racing Based Games makes electronic gambling games, including video slots and video poker. You see these types of machines in bars and restaurants wherever this type of gaming has become legal. But they also make a more innovative type of game in which players are presented with historical races and given the option to bet on them in a parimutuel fashion. The results, as best as I can tell, are based on the real-world outcomes of what I assume are obscure enough races that people aren’t able to simply look up the results on their smartphones in whatever the allotted time is that they’re given. Those results and races, naturally, include the names of the venues in which they were run.
Some well-known racetracks, such as Oak Lawn, sued over this, claiming trademark infringement. The court didn’t buy it, apparently.
The Court dismissed the suit in its entirety, stating that Encore is “fully within their rights to describe where an event took place in their wagering system without implying the owners of the racetrack are sponsoring the game…[Encore is] protected by the fair use defense when describing where an event took place, even when the location described is most commonly conveyed using a registered trademark…Plaintiffs have failed to allege plausible facts which would justify this matter proceeding beyond this motion to dismiss…Therefore, the Court grants Defendants’ motion and dismisses Plaintiffs’ claims in their entirety.”
And it’s quite easy to see the court’s side of things in this case. The use of a trademark primarily to portray historical fact is certainly Fair Use. A race run at Oak Lawn can be described as having been as such. Still, I’m somewhat surprised at the ruling. These electronic games are a form of gambling, after all, and it isn’t hard to understand why horse tracks, which are largely struggling nationally, wouldn’t want potential bettors to find themselves betting on historical races in this way. Still, the fact that these games are dealing with matters of factual history means Fair Use does indeed come into play.
And, honestly, it’s not like what Encore does is necessarily harmful to the tracks in the way they might think.
“We are grateful that the Court once again dismissed a lawsuit that would have severely limited growth in the historic horse racing market,” commented Encore President Jeremy Stein. “Encore is committed to the long term health of the racing and breeding industries, and we are proud that the Encore system and games continue to generate record handle numbers and significant revenue for the horse industry in Kentucky and Wyoming. Monday’s ruling will allow us to continue growing while looking to bring historic horse racing revenue to new racing jurisdictions.”
For those of us that love horse racing, anything that brings more people into the fold is a good thing. If people playing these electronic games like them enough to then go out to the actual track, it’s a building block for the industry. There’s no substitute for going to a nice track, after all, least of all by sitting in front of a glowing machine.
Regardless, it’s nice to see a court get a Fair Use question right.