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Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 1 of 176 Page ID #:649

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DANIEL M. PETROCELLI (S.B. #97802)


dpetrocelli@omm.com
MOLLY M. LENS (S.B. #283867)
mlens@omm.com
CAMERON H. BISCAY (S.B. #266786)
cbiscay@omm.com
OMELVENY & MYERS LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, California 90067-6035
Telephone: (310) 553-6700
Facsimile: (310) 246-6779
Attorneys for Twentieth Century Fox
Television, a division of Twentieth Century
Fox Film Corporation, and Fox
Broadcasting Company

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION
TWENTIETH CENTURY FOX
TELEVISION, a division of
TWENTIETH CENTURY FOX FILM
CORPORATION, a Delaware company,
et al.,

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Plaintiffs,
v.
EMPIRE DISTRIBUTION, INC., a
California corporation,

Case No. 2:15-cv-02158 PA(FFMx)


DECLARATION OF MOLLY M.
LENS IN SUPPORT OF FOXS
MOTION FOR SUMMARY
JUDGMENT
Judge: Hon. Percy Anderson
Hearing Date: February 1, 2016
Time: 1:30 p.m.
Place: Courtroom 15

Defendant.

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And related counterclaims


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TABLE OF CONTENTS

Title

Declaration Of Molly M. Lens In Support Of Foxs Motion For Summary


Judgment ....................................................................................................................................... 1

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Exhibit 1: Local Rule 7-3 Correspondence ................................................................................... 5


Exhibit 2: Foxs Complaint For Declaratory Relief...................................................................... 7
Exhibit 3: Empire Distribution, Inc.s Answer To Complaint .................................................... 35
Exhibit 4: Empire Distribution, Inc.s Counterclaims ................................................................ 47
Exhibit 5: Excerpts Of Empire Distribution, Inc.s Responses To Foxs First Set
Of Interrogatories ......................................................................................................................... 72

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Exhibit 6: Excerpts Of Empire Distribution, Inc.s Responses to Foxs Second Set


Of Requests For Admission ......................................................................................................... 81

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Exhibit 7: Ted Cohens Expert Report........................................................................................ 84

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Exhibit 8: Deborah Jays Expert Report ..................................................................................... 90

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Exhibit 9: Phil Johnsons Expert Report ................................................................................... 110

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Exhibit 10: Front & Back Covers Of DVD Set Empire: The Complete First
Season ........................................................................................................................................ 135

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Exhibit 11: DVD Set Empire: The Complete First Season ...................................................... 136
Exhibit 12: Labels Of DVDs Of Ten Episodes Of Season 2 Of Empire .................................. 137
Exhibit 13: DVDs Of Ten Episodes Of Season 2 Of Empire ................................................... 142
Exhibit 14: Front & Back Covers Of Album Empire: Original Soundtrack From
Season 1 ..................................................................................................................................... 143
Exhibit 15: CD of Album Empire: Original Soundtrack
From Season 1 ........................................................................................................................... 144
Exhibit 16: Front & Back Covers Of Album Empire: Original Soundtrack Season
2 Volume 1 ................................................................................................................................. 145
Exhibit 17: CD of Album Empire: Original Soundtrack
Season 2 Volume 1 ..................................................................................................................... 146
Exhibit 18: Excerpts Of Amazon.com Sales Page For Empire: Music
From The Pilot .......................................................................................................................... 147

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Exhibit 19: Excerpts Of Amazon.com Sales Page For Empire: Music


From A Man Sinned Against ...................................................................................................... 149
Exhibit 20: Defendants Website On September 23, 2015 ....................................................... 151

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I, Molly M. Lens, the undersigned, hereby declare:

1.

I am a member in good standing of the State Bar of California, an

attorney in the law firm of OMelveny & Myers LLP, and counsel for plaintiffs and

counterclaim defendants Twentieth Century Fox Film Television, a division of

Twentieth Century Fox Film Corporation, and Fox Broadcasting Company

(collectively, Fox). I submit this declaration in support of Foxs Motion For

Summary Judgment. I have personal knowledge of the facts set forth herein and, if

called to testify, could and would testify competently thereto.

2.

On or about November 23, 2015, I sent an email to defendants

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counsel, Peter Villar, requesting, pursuant to Local Rule 7-3, that the parties meet

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and confer on this motion. A true and correct copy of my L.R. 7-3 correspondence

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dated November 23, 2015 is attached hereto as Exhibit 1.

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3.

On December 2, 2015, my colleague Cameron Biscay and I met-and-

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conferred telephonically with Mr. Villar to discuss Foxs anticipated motion for

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summary judgment. Defendant declined to withdraw any of its claims to address

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the issues and arguments we raised in our L.R. 7-3 discussions.

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4.

Attached hereto as Exhibit 2 is a true and correct copy of Foxs

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Complaint For Declaratory Relief (Dkt. 1), filed on or about March 23, 2015,

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including Exhibit A thereto.

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Attached hereto as Exhibit 3 is a true and correct copy of Empire

Distribution, Inc.s Answer To Complaint (Dkt. 15), filed on or about June 4, 2015.
6.

Attached hereto as Exhibit 4 is a true and correct copy of Empire

Distribution, Inc.s Counterclaims (Dkt. 16), filed on or about June 4, 2015.


7.

On or about June 30, 2015, the parties held their Federal Rule of Civil

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Procedure 26(f) conference. During this conference, defendants counsel stated that

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defendants counterclaims pled forward confusion, and purported to reserve the

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right to allege reverse confusion if it discovered evidence to support such a claim.

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8.

Attached hereto as Exhibit 5 is a true and correct copy of excerpts of

Empire Distribution, Inc.s Responses To Foxs First Set Of Interrogatories, served

on or about November 23, 2015. (Per paragraph 5(a) of the Courts Scheduling

Order (Dkt. 23), Fox is only submitting excerpts of discovery responses and other

documentary evidence where Fox is only relying on a portion of the document in

question.)
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Attached hereto as Exhibit 6 is a true and correct copy of excerpts of

Empire Distribution, Inc.s Responses to Foxs Second Set of Requests for

Admission, served on or about December 2, 2015.


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expert report, served on or about November 30, 2015.


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Attached hereto as Exhibit 7 is a true and correct copy of Ted Cohens

Attached hereto as Exhibit 8 is a true and correct copy of Deborah

Jays expert report, without its exhibits, served on or about November 30, 2015.
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Attached hereto as Exhibit 9 is a true and correct copy of Phil

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Johnsons expert report, without its exhibits, served on or about November 30,

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2015.

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Attached hereto as Exhibit 10 is a true and correct copy of the front

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and back covers of the DVD set Empire: The Complete First Season. Fox lodged

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herewith a true and correct copy of the DVD set Empire: The Complete First

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Season, with the DVDs being designated as Exhibit 11.

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Attached hereto as Exhibit 12 is a true and correct copy of the labels

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of the DVDs containing the episodes of Season 2 of Empire that have aired to date.

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Each episode is on an individual DVD and, as there are 10 episodes to date in

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Season 2, there are 10 separate DVDs. The first episode of Season 2 is labeled

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2AXP01, the second episode of Season 2 is labeled 2AXP02, the third episode

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of Season 2 is labeled 2AXP03, and so on. Fox lodged herewith a true and

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correct copy of these ten DVDs, with the DVDs being designated as Exhibit 13.

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15.

Attached hereto as Exhibit 14 is a true and correct copy of the front

and back covers of the album Empire: Original Soundtrack From Season 1, which

contains music from Empires first season. Fox lodged herewith a true and correct

copy of the Empire: Original Soundtrack From Season 1 album, with the CD being

designated as Exhibit 15.

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Attached hereto as Exhibit 16 is a true and correct copy of the front

and back covers of the album Empire: Original Soundtrack Season 2 Volume 1,

which contains music from the first ten episodes of Empires second season. Fox

lodged herewith a true and correct copy of the Empire: Original Soundtrack Season

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2 Volume 1 album, with the CD being designated as Exhibit 17.


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Attached hereto as Exhibit 18 is a true and correct copy of excerpts of

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the amazon.com sales page for Empire: Music From The Pilot, which contains

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music from Empires pilot episode (i.e., the first episode of the first season). The

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soundtracks from each episode of Empire from Season 1 follow this format, with

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the album art comprised of a gold record label.

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Attached hereto as Exhibit 19 is a true and correct copy of excerpts of

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the amazon.com sales page for Empire: Music From A Man Sinned Against, which

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contains music from the ninth episode of Empires second season. The soundtracks

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from each episode of Empire from Season 2 follow this format, with the album art

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comprised of members of the fictional Lyon family with two lions.

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Attached hereto as Exhibit 20 is a true and correct copy of defendants

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website, www.empi.re, as it existed on September 23, 2015. At my direction and

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under my supervision, a paralegal at my law firm captured this image of

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defendants website.

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On December 14, 2015, I looked up the number of followers that

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Empire Distribution, Empire Distributions owner, Ghazi Shami, and Foxs Empire

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each had on Instagram. Empire Distributions Instagram account had

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approximately 6,000 followers, and Ghazi Shamis Instagram account had less than

5,000 followers. Foxs Empire Instagram account had over 1.6 million followers.

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I declare under penalty of perjury that the foregoing is true and correct.
Executed on December 15, 2015, at Los Angeles, California.

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________________________
Molly M. Lens

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EXHIBIT 1

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 9 of 176 Page ID #:657

From:
Sent:
To:
Cc:
Subject:

Lens, Molly
Monday, November 23, 2015 8:54 AM
Villar, Peter N.
Gale, Paul L.; Bowler, John M.; lindsay.henner@troutmansanders.com; Petrocelli, Daniel;
Biscay, Cameron H.; Ehlers, J. Hardy
Fox v. Empire Distribution

Peter We write to meet and confer in advance of our contemplated motion for summary judgment. We intend to
move for summary judgment on all claims based on the dispositive First Amendment defense; the lack of
likelihood of confusion; and the lack of famousness of Empire Distributions alleged marks. Pursuant to L.R.
7.3, please let us know when you are available to meet and confer. When you respond, please let us know if
you anticipate moving for summary judgment on any claims.
With respect to the schedule, as you should be aware, Judge Andersons scheduling order provides that the
current deadline for summary judgment hearings is February 1. The scheduling order separately encourages the
moving party to provide more than the minimum twenty-eight (28) day notice for such motions. This means,
under the current schedule, summary judgment motion(s) will be filed prior to the completion of
discovery. Further, the motions themselves will likely be filed shortly before the holidays, with oppositions
falling over the Christmas/New Year holidays.
In light of this, we propose the parties stipulate to an extension of the summary judgment hearing deadline to
February 29 (leaving all other case deadlines in place). This would allow the parties to complete discovery
prior to summary judgment briefing and, of lesser importance, avoid any holiday conflicts. While the parties
can meet and confer to discuss the specific schedule, we propose the following, working backwards from the
February 29 hearing date: January 25: deadline to move for summary judgment, contemporaneous with the
close of discovery; February 4: opposition date; February 12: reply date (given the holiday of February 15).
To the extent your client is not willing to agree that the parties should jointly request that Judge Anderson move
the hearing to February 29, we ask that Empire Distribution stipulate that it will not oppose our forthcoming
summary judgment motion on 56(d) grounds.
We ask for your response by 10:00 am tomorrow, which will allow the parties to present any agreement to
Judge Anderson for his consideration on Wednesday before the Thanksgiving holiday.
Molly
______________________________
Molly M. Lens
O'Melveny & Myers LLP
1999 Avenue of the Stars
Los Angeles, CA 90067
Phone: (310) 246-8593
Fax: (310) 246-6779
mlens@omm.com
This message and any attached documents contain information from the law firm of O'Melveny & Myers LLP that may be
confidential and/or privileged. If you are not the intended recipient, you may not read, copy, distribute, or use this
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MARVIN S. PUTNAM (S.B. #212839)


mputnam@omm.com
MOLLY M. LENS (S.B. #283867)
mlens@omm.com
OMELVENY & MYERS LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, California 90067-6035
Telephone: (310) 553-6700
Facsimile: (310) 246-6779
Attorneys for Twentieth Century Fox
Television, a division of Twentieth Century
Fox Film Corporation, and Fox Broadcasting
Company

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TWENTIETH CENTURY FOX


TELEVISION, a division of
TWENTIETH CENTURY FOX FILM
CORPORATION, a Delaware company,
and FOX BROADCASTING
COMPANY, a Delaware corporation,

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COMPLAINT FOR
DECLARATORY RELIEF
DEMAND FOR JURY TRIAL

Plaintiffs,

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Case No. 2:15-cv-2158

v.
EMPIRE DISTRIBUTION, INC., a
California corporation,
Defendant.

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COMPLAINT FOR
DECLARATORY RELIEF

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Plaintiffs Twentieth Century Fox Television (TCFTV), a division of

Twentieth Century Fox Film Corporation (TCFFC), and Fox Broadcasting

Company (FBC) (collectively, Fox), for their complaint against defendant

Empire Distribution, Inc., allege as follows:


NATURE OF THE ACTION

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1.

Fox brings this action to protect its intellectual property rights in and

to its breakout fictional television series Empire. Even though the series only

debuted on January 7, 2015, Empire has already become a cultural phenomenon.

To date, each episode of Empire has attracted more viewers than the prior

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episodea feat that no other show in the last 23 years has accomplished. FBC

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recently renewed the series for a second season.

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2.

Fox seeks a declaration pursuant to 28 U.S.C. 2201 that Empire, and

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the release of music therefrom, does not violate any of defendants purported

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trademark rights. This action has been necessitated by defendants meritless claims

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of trademark infringement and dilution, as well as unfair competition, and its

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attendant demands for millions of dollars.


PARTIES

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3.

TCFFC is a corporation organized and existing under the laws of

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Delaware, having its principal place of business at 10201 West Pico Boulevard, Los

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Angeles, California 90064. TCFFC owns the intellectual property rights in and to

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the fictional television series Empire and the music therefrom, including copyright

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and trademark rights.

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TCFTV is a television studio engaged in the business of creating and

producing television programs.


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FBC is a Delaware corporation, having its principal place of business

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at 10201 West Pico Boulevard, Los Angeles, California 90064. FBC operates the

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Fox Network, a national broadcast television network with 203 affiliates reaching

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approximately 99% of all United States households.


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6.

Defendant Empire Distribution, Inc. is a California corporation with a

principal place of business at 375 Portrero Avenue, Suite 5, San Francisco,

California 94103. On information and belief, defendant is a music record label and

music distribution company engaged in the business of live and recorded music

production, distribution, and sales.


JURISDICTION AND VENUE

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This is an action for declaratory relief brought under 28 U.S.C.

2201 et seq.; under the Lanham Act, 15 U.S.C. 1125(a) and 1125(c); and

under state unfair competition law, California Business and Professions Code

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17200 et seq. This Court has federal question subject matter jurisdiction over

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the federal claims pursuant to 28 U.S.C. 1331 and 1338(a) and 15 U.S.C.

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1121. This Court has subject matter jurisdiction over the state law claim under 28

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U.S.C. 1338(b) and the doctrine of supplemental jurisdiction.

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This Court has personal jurisdiction over defendant because defendant

is incorporated and domiciled in California.


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Venue is proper in this Court pursuant to 28 U.S.C. 1391(b)(2)

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because a substantial part of the events giving rise to Foxs claims against

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defendant occurred in the Central District of California. Fox created, produces,

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distributes, exhibits, and sells the purportedly infringing properties in this District;

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attempted to resolve the dispute with defendant in this District; and received threats

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of litigation and cease-and-desist letters from defendant in this District. Venue is

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also proper in this Court pursuant to 28 U.S.C. 1391(b)(1) because defendant

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directed its cease-and-desist letters to this District and also, on information and

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belief, distributes, promotes, and sells music under its alleged trademarks

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throughout this District.


FOXS VALUABLE INTELLECTUAL PROPERTY

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Empire is a musical dramatic television series. The show tells the

fictional story of a feuding entertainment-industry family. After rapper and drug


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dealer turned music mogul Lucious Lyon (played by Academy Award-nominee

Terrence Howard) is diagnosed with a fatal disease, viewers watch his ex-wife,

Cookie (played by Academy Award-nominee Taraji P. Henson), and their three

sons fight for future control over Lucious powerhouse music and entertainment

company. This fictional company is fittingly called Empire Enterprises, as it is a

veritableand fantasticalconglomerate based in New York City. In addition to

producing hip-hop and R&B hits, Empire Enterprises is portrayed to own a

nightclub, make champagne and sneakers, and generate over $343 million in annual

revenue.

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By all accounts, Empire is a massive hit, garnering widespread

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attention, critical acclaim, and unprecedented ratings success. For example, Empire

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has set multiple viewership records since its debut. Its recently-aired season finale

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reached 16.7 million same-day viewers. This represented an entire season in which

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each episode attracted more viewers than the last. No program has accomplished

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even five weeks of consecutive viewership growth under the modern system for

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measuring viewership, in place for over two decades. FBC renewed Empire for a

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second season on January 17, 2015.

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Music is, not surprisingly, featured prominently on Empire. This

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music includes original songs produced for the show by Grammy Award-winning

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producer Timothy Timbaland Mosley. Through Columbia Records, Fox releases

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songs following the broadcast of each new episode, and it recently released an

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Empire compilation soundtrack (collectively, the Soundtrack Music). The album,

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Empire: The Original Soundtrack from Season 1, debuted as the number one

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album on the Billboard 200 chart for the week of March 28, 2015, beating out

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Madonnas new Rebel Heart album for the top slot. An earlier album, Empire:

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Music from the Breach, consisting of songs from Empires ninth episode, held the

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22nd spot on the Billboard 200 chart for the week of March 21, 2015.

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DEFENDANTS ALLEGED TRADEMARKS

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Defendant claims rights to three purported trademarks: Empire,

Empire Distribution, and Empire Recordings.

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Empire.

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Defendant has never applied for federal registration of a trademark in

Defendants January 24, 2014 application for registration of Empire

Distribution to identify various non-electronic music recordings is pending, and

was initially denied by the United State Patent and Trademark Office (the

USPTO) due to a likelihood of confusion with Empire Entertainment and

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DVD Empire. The USPTO has not yet taken action on defendants December 10,

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2014 application for registration of Empire Distribution to identify electronic

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delivery of musical recordings.

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Defendants January 24, 2014 application for registration of Empire

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Recordings to identify various non-electronic music recordings is pending, and it

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was initially denied by the USPTO due to a likelihood of confusion with Empire

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Entertainment and DVD Empire.

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Defendant claims to use the logo below:

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Fig. 1.
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Upon information and belief, the Empire Distribution logo does not

generally appear on its album covers.


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Upon information and belief, Empire Distributions, Inc. was not

formed until June 2011, and the earliest that it claims to have used Empire
Distribution or Empire Recordings in commerce is January 1, 2010.
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On March 23, 2015, a Google search for empire record label

displayed defendants website on the seventh page and a job posting on the sixth
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page. None of the other hits on the first six pages were related to defendant. And

the entries on the first six pages are predominantly for other record labels with

empire in their name, such as Empire Records, Royal Empire Records, American

Empire Records, and Empire State Recordings.

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On March 23, 2015, a Google search for Empire Distribution Inc.

displayed defendants website as the fifth result, with none of the earlier entries

referring to defendant.

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22.

Empire is a common word in trademarks, including in the

entertainment field. For example, just in the State of California, there are

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companies doing business as Empire Recordings LLC; Dark Empire Recordings

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LLC; Empire Entertainment, Inc.; Empire Entertainment Productions, Inc.; Empire

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Media Center; and Empire Publishing, Inc. There is even a film called Empire

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Records. Outside the State of California, as well as outside the entertainment field,

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there are myriad more Empire-related marks.


FOXS USE OF THE WORD EMPIRE

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Empire is the title of Foxs breakout dramatic series. Empire

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Enterprises is the name of the fictional company at the heart of the series. The

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Soundtrack Music also prominently bears the Empire series logos along with other

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indicia from the series so that consumers can associate it with the television show.

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Fox has spent hundreds of thousands of dollars to advertise and

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promote the series. These efforts included developing consistent branding. For this

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reason, Fox uses several, related logos to identify Empire and the music therefrom.

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The following two logos are exemplars of those used to promote the

series itself:

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Fig. 2.

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Fig. 3.

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The following two logos are exemplars of those used to promote the

Soundtrack Music:

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Fig. 4.

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1
2
3
4
5
6
7

Fig. 5.
DEFENDANTS CLAIMS

8
9

27.

On February 16, 2015three days after Empire increased viewership

10

for a then-record fifth straight week and claimed a total viewership of 11.9

11

milliondefendant sent Fox a claim letter, authored by outside counsel, accusing

12

Fox of using defendants alleged marks without authorization. See Exhibit A.

13

28.

This letter claimed trademark infringement under sections 1114 and

14

1125(a) of the Lanham Act. Defendant claimed that use of the word Empire

15

somehow confused defendants customers, artists, and business partners as to

16

whether the series and its music are somehow affiliated with defendant.

17

29.

This letter also accused Fox of trademark dilution by tarnishment.

18

Defendants theory is that Empires portrayal of a label run by a homophobic drug

19

dealer prone to murdering his friends threatens to tarnish [defendants] brand and

20

harm [its] goodwill.

21
22
23

30.

Defendant demanded that Fox issue document preservation notices for

all records that are potentially relevant to this dispute.


31.

During a subsequent March 6, 2015 telephone call, defendant, also

24

through outside counsel, demanded $8 million to resolve its trademark infringement

25

and dilution claims against Fox.

26

32.

Later on March 6, 2015, defendant sent a second claim letter. See

27

Exhibit B. This letter, again authored by outside counsel, reiterated defendants

28

trademark claims, asserted a new claim for unfair competition, and gave Fox three
-8EXHIBIT 2
14

COMPLAINT FOR
DECLARATORY RELIEF

Case Case
2:15-cv-02158-PA-FFM
2:15-cv-02158 Document
Document
1 Filed
41-4 03/23/15
Filed 12/15/15
Page 9Page
of 1320Page
of 176
ID #:9
Page ID
#:668
1

options to settle the claims made against it: (1) Fox could pay $5 million and

include artists that defendant represents as regular guest stars on the fictional

television series Empire; (2) Fox could pay defendant $8 million; or (3) Fox could

stop using the word Empire.

5
6
7

33.

Faced with defendants increasing claims and demands, Fox

commences this action to affirm its rights.

COUNT ONE-DECLARATORY JUDGMENT


REGARDING FEDERAL TRADEMARK INFRINGEMENT

(28 U.S.C. 2201 et seq. and 15 U.S.C. 1125(a))

10
11
12

34.

Fox repeats and realleges each allegation contained in paragraphs 1

through 33 of this complaint as if fully set forth herein.


35.

Defendant has alleged that the fictional television series Empire and

13

the related Soundtrack Music infringe its purported trademark rights in Empire,

14

Empire Distribution, and Empire Recordings. Defendant has further made

15

demands for millions of dollars to settle these purported claims. By virtue of

16

defendants conduct, Fox has a real and reasonable apprehension of litigation and

17

has been brought into adversarial conflict with defendant.

18
19
20

36.

Defendants conduct threatens to place a cloud over Foxs intellectual

property rights in the fictional television series Empire and the Soundtrack Music.
37.

By reason of the foregoing, there now exists between the parties an

21

actual and justiciable controversy concerning Foxs and defendants respective

22

rights with respect to the use of the word Empire.

23
24

38.

The aforesaid declaration is necessary and appropriate at this time so

that Foxs right to continue its conduct can be affirmed.

25

39.

Fox has no adequate remedy at law.

26

40.

Accordingly, Fox seeks, pursuant to 28 U.S.C. 2201, a judgment

27

from this Court that Foxs use of the word Empire in the title of its fictional

28

television series, in connection with the fictional entity Empire Enterprises, and
-9EXHIBIT 2
15

COMPLAINT FOR
DECLARATORY RELIEF

CaseCase
2:15-cv-02158-PA-FFM
2:15-cv-02158 Document
Document
1 Filed
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Filed 12/15/15
Page 10Page
of 1321Page
of 176
ID #:10
Page ID
#:669
1

in connection with the Soundtrack Music does not infringe defendants trademark

rights, if any.

3
4

COUNT TWO-DECLARATORY JUDGMENT


REGARDING FEDERAL TRADEMARK DILUTION

(28 U.S.C. 2201 et seq. and 15 U.S.C. 1125(c))

6
7
8

41.

Fox repeats and realleges each allegation contained in paragraphs 1

through 33 of this complaint as if fully set forth herein.


42.

Defendant contends that Foxs portrayal of the main character in the

fictional television series Empire dilutes, by tarnishment, its purported trademark

10

rights in Empire, Empire Distribution, and Empire Recordings. Defendant

11

has further made demands for millions of dollars to settle these purported claims.

12

By virtue of defendants conduct, Fox has a real and reasonable apprehension of

13

litigation and has been brought into adversarial conflict with defendant.

14
15
16
17
18

43.

Defendants purported marks are not famous marks entitled to

protection under 15 U.S.C. 1125(c)(1).


44.

Defendants conduct threatens to place a cloud over Foxs intellectual

property rights in the fictional television series Empire and the Soundtrack Music.
45.

By reason of the foregoing, there now exists between the parties an

19

actual and justiciable controversy concerning Foxs and defendants respective

20

rights and obligations with respect to the use of the word Empire.

21
22

46.

The aforesaid declaration is necessary and appropriate at this time so

that Foxs right to continue its conduct can be affirmed.

23

47.

Fox has no adequate remedy at law.

24

48.

Accordingly, Fox seeks, pursuant to 28 U.S.C. 2201, a judgment

25

from this Court that Foxs use of the word Empire in the title of its fictional

26

television series, in connection with the fictional entity Empire Enterprises, and

27

in connection with the Soundtrack Music do not tarnish or otherwise dilute

28

defendants trademark rights, if any.


- 10 EXHIBIT 2
16

COMPLAINT FOR
DECLARATORY RELIEF

CaseCase
2:15-cv-02158-PA-FFM
2:15-cv-02158 Document
Document
1 Filed
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Filed 12/15/15
Page 11Page
of 1322Page
of 176
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Page ID
#:670
1
2

COUNT THREE-DECLARATORY JUDGMENT


REGARDING STATE UNFAIR COMPETITION

(28 U.S.C. 2201 et seq. and Cal. Bus. Prof. Code 17200 et seq.)

49.

5
6

Fox repeats and realleges each allegation contained in paragraphs 1

through 33 of this complaint as if fully set forth herein.


50.

Defendant contends that Foxs use of the mark Empire in the title of

its fictional television series, in connection with the fictional entity Empire

Enterprises, and in connection with the Soundtrack Music constitutes unfair

competition. Defendant has further made demands for millions of dollars to settle

10

this purported claim. By virtue of defendants conduct, Fox has a real and

11

reasonable apprehension of litigation and has been brought into adversarial conflict

12

with defendant.

13

51.

14
15

Defendants conduct threatens to place a cloud over Foxs intellectual

property rights in the fictional television series Empire and the Soundtrack Music.
52.

By reason of the foregoing, there now exists between the parties an

16

actual and justiciable controversy concerning Foxs and defendants respective

17

rights with respect to the use of the word Empire.

18
19

53.

The aforesaid declaration is necessary and appropriate at this time so

that Foxs right to continue its conduct can be affirmed.

20

54.

Fox has no adequate remedy at law.

21

55.

Accordingly, Fox seeks, pursuant to 28 U.S.C. 2201, a judgment

22

from this Court that Foxs use of the word Empire in the title of its fictional

23

television series, in connection with the fictional entity Empire Enterprises, and

24

in connection with the Soundtrack Music does not violate defendants trademark

25

rights, if any.

26

PRAYER FOR RELIEF

27

WHEREFORE, Fox prays for a judgment against defendant as follows:

28

A.

For a declaration that Foxs use of the word Empire in the title of its
- 11 EXHIBIT 2
17

COMPLAINT FOR
DECLARATORY RELIEF

CaseCase
2:15-cv-02158-PA-FFM
2:15-cv-02158 Document
Document
1 Filed
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Page 12Page
of 1323Page
of 176
ID #:12
Page ID
#:671
1

fictional television series, in connection with the fictional entity Empire

Enterprises, and in connection with the Soundtrack Music does not:


i.

Infringe, dilute, or otherwise violate any of defendants


trademark rights;

4
5

ii.

Violate Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a);

iii.

Violate Section 43(a) of the Lanham Act, 15 U.S.C. 1125(c);

iv.

Violate California Business and Professions Code 17200 et


seq.;

v.

competition law;

10
11

Violate any applicable common law or statutory unfair

B.

For a permanent injunction enjoining defendant, and its agents,

12

servants, employees, attorneys, successors and assigns, and all persons, firms and

13

corporations acting in concert with it, from making false statements and

14

representations to third parties asserting that Fox has violated its trademark rights,

15

if any;

16

C.

For Foxs attorney fees and costs incurred; and

17

D.

For such other and further relief as the Court deems just and equitable.

18
19
20
21

Dated: March 23, 2015

MARVIN S. PUTNAM
OMELVENY & MYERS LLP

22
23
24
25

By:

/s/ Marvin S. Putnam


Marvin S. Putnam
Attorneys for Twentieth Century Fox
Film Corporation, Twentieth Century
Fox Television, and Fox Broadcasting
Company

26
27
28
- 12 EXHIBIT 2
18

COMPLAINT FOR
DECLARATORY RELIEF

CaseCase
2:15-cv-02158-PA-FFM
2:15-cv-02158 Document
Document
1 Filed
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Filed 12/15/15
Page 13Page
of 1324Page
of 176
ID #:13
Page ID
#:672
1
2
3

DEMAND FOR JURY TRIAL


Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Fox hereby
demand a trial by jury for all issues triable to a jury.

4
5
6
7

Dated: March 23, 2015

MARVIN S. PUTNAM
OMELVENY & MYERS LLP

8
9
10
11

By:

/s/ Marvin S. Putnam


Marvin S. Putnam
Attorneys for Twentieth Century Fox
Television, a division of Twentieth
Century Fox Film Corporation, and Fox
Broadcasting Company

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 13 EXHIBIT 2
19

COMPLAINT FOR
DECLARATORY RELIEF

CaseCase
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Document
5 Filed
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Page 2 Page
of 20 25
Page
of 176
ID #:21
Page ID
#:673

Exhibit
A

14
EXHIBIT
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CaseCase
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Document
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Page 3 Page
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Page
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ID #:22
Page ID
MICdEL 0 rOEBS JR
#:674
TROUTVAN
SANDERS LLP
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TT N A X T

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Bank of Amerc:Pza
GOD Peach:ree Streel NE. Se 52D0
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404 885.3DDD &ephone
Iroutmansanders corn

February 16, 2015

VIA FEDERAL EXPRESS


Gerson A. Zweifach. Esq.
Group General Counsel
Twenty-First Centun Fox, Inc.
1211 Avenue of Americas, 8th Floor
New York, NY 10036

Re:

EMPIRETM Trademark Infringement

Dear Mr. Zweifach:

Our firm represents Empire Distribution Inc. (Empire), a well-known music record
label and music distribution company that has released albums in a wide variety of genres, but
specifically focusing on hip hop, rap, and R&B, under the marks EMPIRETM, EMPIRE
DISTRIBUTIONTM and EMPIRE RECORDINGSTM (the Marks) (see http://empLre or
www.empiredistribution.com). Over the past five years, Empire has become one of the largest
distributors and producers of digital music in the country. It has had numerous Billboard charting
releases from well-recognized artists under its label, having partnered with notable artists such as
Kendrick Lamar, Migos. The Foreign Exchange and Snoop Dogg. Songs released by EMPIRE
RECORDINGS have earned platinum and gold records, and the label has sponsored sold-out
showcases under its name at events such as South by Southwest.
Empire, under both the RECORDINGS and DISTRIBUTION Marks, has built
relationships across the music industry to successfully record, promote, and distribute platinumand gold-certified records. As part of its partnership with Universal/Republic Records, Empire
Recordings was recognized by the Recording Industry Association of America for its role in
selling over 1,500,000 records for the artist Sage the Gemini. (See Attachment A.) The Marks
have been prominently used in press releases and coverage of those records. Separately, Empire
Recordings is engaged in an ongoing relationship with Atlantic Records to co-develop,
distribute, and market artists. Through its partnership with eOne and others, Empire has
distributed, marketed, and sold thousands of physical records under its Marks domestically and
around the world.
Beyond this widespread exposure, the Marks have been the subject of broad advertising
and promotional campaigns and online presence. The Marks became a recognized symbol for
ATLANTA
RALEIGH

2$ 70947 lv I

5EIJING
RICHf.IOND

CHARLOTTE
SAN DJEGO

CHICAGO
HONG KONG
NEW YORK
ORANGE COUNTY
PORTLAND
SHANGHAI
TYSONS CORNER
VIRGINIA BEACH
WASHINGTON! DC

15
EXHIBIT
2
21

TROUTMAN
Case
Case
2:15-cv-02158-PA-FFM
2:15-cv-02158 Document
Document
5 Filed
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of 20 27
Page
of 176
ID #:23
Page ID
SANDERS
#:675
Gerson A. Zweifach
February 16, 2015
Page 2
quality music and music services years ago. (See Attachment B.) As a result, the Marks are well
known among the relevant consuming public as identifying Empires goods and services. Due to
the tremendous amount of valuable goodwill Empire has developed in the Marks, it cannot
tolerate the unauthorized use of its Marks, because such unauthorized use is likely to cause
confUsion among the public as to the source, origin, sponsorship, or affiliation of services
identified by the Marks, but not authorized by Empire.
The recent debut of FOXs television program Empire has created significant confusion
with Empires products and services in the marketplace. As you know, the program follows the
fictional hip hop music label named Empire Enterprises. Numerous consumers, artists and
business partners have expressed confusion to Empire with regards to whether the Empire
program has any affiliation or business relationship with Empire, which it does not. FOXs use
of the Empire mark below in all upper case letters, the same font treatment as our client, has
significantly exacerbated this confusion.

EMPIRE
EMPIRE
I

I au

11

FOXs use of a city skyline graphic in conjunction with the Empire mark, a combination
originating with our client, in both marketing materials and merchandise has made the confusion
between the two titles inescapable.

EMPIRE
Moreover. FOX advertises, distributes and sells music under the Empire mark.
Because this music shares the same search terms as Empires music, and the musical genres are
identical, the albums and songs have been positioned in close proximity in online stores such as
ilunes, Google Play. Amazon.com, Spotify and Rdio. (See Attachment B.) This further
perpetuates damaging public confusion.
The federal Lanham Act and similar state laws prohibit FOXs use of a trademark in
comiection with the advertising or sale of any goods or services when such use is likely to cause

2470937 lvi

16
EXHIBIT
2
22

.TROUTMA
N
Case
Case
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Document
Document
5 Filed
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of 20 28
Page
of 176
ID #:24
Page ID
SANDERS
#:676
Gerson A. Zweifach
February 16, 2015
Page 3
confusion as to the source of those goods or services. 15 U.S.C. 1114, 1125(a). The Lanham
Act also prohibits any person or entity from using a word or name in a manner that is likely to
cause confusion as to the affiliation, connection or association with another person or entity.
FOXs unauthorized use of the Marks has already confused and is likely to continue to confuse
members of the public into believing that you are an approved licensee of or otherwise affiliated
with Empire, the very type of deception that these laws prohibit. Moreover, Empires ponrayal
of a label run by a homophobic drug dealer prone to murdering his friends threatens to tarnish
the brand and harm the goodwill built by our client. Remedies provided for under the Lanham
Act include injunctions and monetary damages.
Empire requests that within seven (7) calendar days of the date of this letter FOX
respond to set a meeting to discuss these legal issues. If we do not receive a timely response, we
will assume FOX does not wish to pursue a resolution in this matter and will advise Empire
accordingly.
We also request that FOX immediately preserve all documents, data, and tangible things
(hereafter Records) in its possession, custody, and control that are potentially relevant to the
subject matter of this dispute, including all electronically stored information, and not destroy,
delete, erase or over write any such materials. The scope of preservation should include, at a
minimum, all Records relating to the conception, development, and launch of the Empire
program; all communications and other materials exchanged regarding the selection of the
Empire program name and its logo; and all cost and financial Records relating to the creation and
roll-out of the program.
This letter does not contain a full analysis of all of the legal issues related to this matter
and is made without any waiver of any rights or remedies which are expressly reserved.
Sincerely,

,,J11a .71_Michael D. Hobbs Jr.

24 7094 7 Iv)

17
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Bcc (via e-mail only):

24 7094 7 lvi

Mr. Ghazi Shami


Vinny Kumar, Esq.
Scott Kenily, Esq.

18
EXHIBIT
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CaseCase
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Page
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ID #:26
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ATTACHMENT A

The EMPIRE RECORDINGS Mark in use alongside the Republic Records mark in their RIAA
certified platinum plaque commemorating their sale of over 1,000,000 copies of the record Gas
Pedal.

2470947 lvi

19
EXHIBIT
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25

CaseCase
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Document
5 Filed
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Page
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ID #:27
Page ID
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The EMPIRE RECORDINGS Mark in use alongside the Republic Records mark in their RIAA
certified platinum plaque commemorating their sale of over 500,000 copies of the record Red
Nose.

2470947 Iv]

20
EXHIBIT
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26

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ID #:28
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Vaw in iTunes
S 1.29
Genres Hip-Hop/Rap. Music
Released: Aug 05. 201l
cE 2014 Empire Recordings
and At antic Recording
Corporation for the Unted
States and WEA International

tor the world DUt5ide of the


United States,
The EMPIRE RECORDINGS Mark in use alongside the Atlantic Recording mark in the iTunes
store.

24 7094 7 lvi

21
EXHIBIT
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ATTACHMENT B

P.

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dstrtbuilon please let me know a bene: contact so we
can taSk business thank,

An Empire Mark was promoted online and in person at the A3C hip hop festival in October
2012.

24 70947 1 vi

22
EXHIBIT
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28

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ID #:30
Page ID
#:682

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An Empire Mark was used to promote the company as a leader in the music recording,
promotion, and digital distribution space as part of a Beatstars seminar in May 2013.

24 7094 7

23
EXHIBIT
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29

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ID #:31
Page ID
#:683

ghaz
20 months go
EMPIRE The Evolution Of Music #betawardsweekend
#youngcallfornle #monster #empl.re
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An Empire Mark was included among other prominent music and consumer brands at the BET
awards weekend in June 2013.

247O947Ii

24
EXHIBIT
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ID #:32
Page ID
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ATTACHMENT C

Go gEe

fl

empire music

Web

Vdecs

Shong

Maps

Images

More

Search ts

About 221 ,00DflOO results (0.17 seconds)

Empire Music on FOX


w.fcx.corrJempIre/music

FOX
Watch the latest Music Performances and lnteMews. Empire MusIc sponsored by
AT&T hp.flv.ww.loxccrn)emplr&musIc.

In the news
The Opulent Majesty of Hakeems Music Video on
Last Nights Empire c
Granuand 13 hours ego
Hekeems trump card is revealed lobe an opulent music video,
which was mecolously
-

Vfr,y EnIre Is Ruurg. The Secrets to Tn New tynast


TheWrso. I day non
Empie Tackles The Musc Inuslrys Gay Double Standard
Out MagazineS A houra ago

More news

for empire music

Empire Distribution
Mvw.emplredsu1Jlbn m/
EMPIRE Disubution ARTISTS BLOG RAD:O.TV Feslurec Albums EMPIRE
Blog.. Santana. Freekey Zekey Pcsled HIP HOP EMPIRE New Releases
...

,.

23709471 vi

25
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ID #:33
Page ID
#:685

iMtABWi
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46. No Label II
Migos

IEXPLIC IT I
$7.99

47. Empire: Music From The..


Empire Cast
$5.99

48. Life After Deathrow

Boose Badazz

IEXPLICITI
$8.99

49. Camp

S
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Childish Gambino
EXPLICIT!
$9. 4g

50. Thanks for Listening


Colt Ford

2470947 lvi

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#:686
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Page 16Page
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Page ID
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Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 40 of 176 Page ID


#:688

EXHIBIT 3

Case
Case 2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document 15
41-4Filed
Filed
06/04/15
12/15/15Page
Page
1 of
4112
of 176
PagePage
ID #:69
ID
#:689

1
2
3
4
5
6
7
8
9
10

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

T ROUTMAN S ANDERS LLP

11

PAUL L. GALE (SBN 065873)


paul.gale@troutmansanders.com
PETER N. VILLAR (SBN 204038)
peter.villar@troutmansanders.com
TROUTMAN SANDERS LLP
5 Park Plaza, Suite 1400
Irvine, California 92614-2545
Telephone: (949) 622-2704
Facsimile: (949) 769-2052
JOHN M. BOWLER (pro hac vice)
john.bowler@troutmansanders.com
MICHAEL D. HOBBS (pro hac vice)
michael.hobbs@troutmansanders.com
TROUTMAN SANDERS LLP
Bank of America Plaza
600 Peachtree Street NE, Suite 5200
Atlanta, Georgia 30308-2216
Attorneys for Defendant
Empire Distribution Inc.

12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14

WESTERN DIVISION

15
16
17
18
19

TWENTIETH CENTURY FOX


TELEVISION, a division of
TWENTIETH CENTURY FOX
FILM CORPORATION, a Delaware
company, and FOX
BROADCASTING COMPANY, a
Delaware corporation,

20

Plaintiffs,

21
22
23

Case No. 2:15-cv-02158-PA-FFM


Hon. Percy Anderson
EMPIRE DISTRIBUTION, INC.S
ANSWER TO COMPLAINT
DEMAND FOR JURY TRIAL

v.
EMPIRE DISTRIBUTION, INC., a
California corporation,
Defendant.

24
25
26
27
28

EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT


26082199

EXHIBIT 3
35

Case 2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document 15
41-4Filed
Filed
12/15/15Page
Page
4212
of 176
ID
Case
06/04/15
2 of
PagePage
ID #:70
#:690

Defendant Empire Distribution, Inc. (Empire) hereby answers the

Complaint for Declaratory Relief (Complaint) of Plaintiffs Twentieth Century

Fox Television, a division of Twentieth Century Fox Film Corporation, and Fox

Broadcasting Company (collectively Fox) as follows:

NATURE OF THE ACTION

1.

intended to deprive Empire of its natural position as plaintiff, in anticipation of

Empires filing suit against Fox for trademark infringement. Empire is without

knowledge or information sufficient to form a belief about the truth of the

10

remaining allegations in paragraph 1, which therefore are denied.

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

11
T ROUTMAN S ANDERS LLP

Empire admits that Fox brought this suit as a preemptive action

2.

Empire admits that Fox seeks a declaration that it does not violate

12

Empires trademark rights, but denies that Fox is entitled to any such relief. Empire

13

denies the remaining allegations in paragraph 2.

14

PARTIES
3.

15
16

about the truth of the allegations in paragraph 3, which therefore are denied.
4.

17
18

5.

Empire is without knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 5, which therefore are denied.

21
22

Empire is without knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 4, which therefore are denied.

19
20

Empire is without knowledge or information sufficient to form a belief

6.

Empire admits that it is a California Corporation, but that its principal

place of business is at 16 Maiden Lane, Fourth Floor, San Francisco, CA 94108.

23

JURISDICTION AND VENUE

24

7.

Empire admits the allegations in paragraph 7.

25

8.

Empire admits the allegations in paragraph 8.

26

9.

Empire admits that venue is proper in this District. Empire denies the

27

remaining allegations in paragraph 9.

28
-1EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT
26082199

EXHIBIT 3
36

Case
Case 2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document 15
41-4Filed
Filed
06/04/15
12/15/15Page
Page
3 of
4312
of 176
PagePage
ID #:71
ID
#:691

FOXS ALLEGED INTELLECTUAL PROPERTY

10.

Empire admits that Empire is a television series with music. Empire is

without knowledge or information sufficient to form a belief about the truth of the

remaining allegations in paragraph 10, which therefore are denied.

5
6

11.

Empire is without knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 11, which therefore are denied.

12.

Empire admits that music appears on Empire. Empire is without

knowledge or information sufficient to form a belief about the truth of the

remaining allegations in paragraph 12, which therefore are denied.

10

DEFENDANT EMPIRES TRADEMARKS


13.

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

T ROUTMAN S ANDERS LLP

11
12

Empire denies that its trademarks are purported. Empire admits the

remaining allegations in paragraph 13.


14.

13

Empire denies that it has not applied for federal registration of the

14

mark EMPIRE. Empire specifically shows that it is also the owner of U.S.

15

Trademark Application Nos. 86/477,123, 86/476,822 and 86/174,484 for EMPIRE

16

DISTRIBUTION and U.S. Trademark Application No. 86/174393 for EMPIRE

17

RECORDINGS.

18

15.

Empire admits that its application for EMPIRE DISTRIBUTION

19

(Serial No. 86/174,484) filed January 24, 2014 was initially refused by the USPTO.

20

Empire denies that the USPTO has not taken action on its applications for EMPIRE

21

DISTRIBUTION (Serial Nos. 86/477,123 and 86/476,822 ) filed December 10,

22

2014.

23

16.

Empire admits the allegations in paragraph 16.

24

17.

Empire admits the allegations in paragraph 17.

25

18.

Empire denies the allegations in paragraph 18 and specifically shows

26

that the EMPIRE word mark and others of its Marks appear on albums.

27

19.

Empire admits the allegations in paragraph 19.

28
-2EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT
26082199

EXHIBIT 3
37

Case 2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document 15
41-4Filed
Filed
12/15/15Page
Page
4412
of 176
ID
Case
06/04/15
4 of
PagePage
ID #:72
#:692

20.

about the truth of the allegations in paragraph 20, which therefore are denied.

Empire specifically shows that in a search of the Internet using the Google search

engine conducted April 15, 2015, Empire was referenced in the first, third and sixth

organic search results among many others.

21.

about the truth of the allegations in paragraph 21, which therefore are denied.

Empire specifically shows that in a search of the Internet using the Google search

engine conducted April 15, 2015, Empire was referenced in the second and fifth
organic search results among many others.

S UITE 1400

I RVINE , CA 92614 -2545

11
5 P ARK P LAZA

Empire is without knowledge or information sufficient to form a belief

10
T ROUTMAN S ANDERS LLP

Empire is without knowledge or information sufficient to form a belief

22.

Empire denies the allegations of the first sentence in paragraph 22.

12

Empire admits that its affiliated companies, Empire Recordings, Inc. and Empire

13

Publishing, Inc., do business in the State of California. Empire is not aware of any

14

California entity named Empire Recordings, LLC and is otherwise without

15

knowledge or information sufficient to form a belief about the truth of the

16

remaining allegations in paragraph 22, which therefore are denied.

17

FOXS USE OF EMPIRE


23.

18

Empire admits that Foxs television series is named Empire. Empire

19

further admits that Empire Enterprises or Empire Entertainment is the name of the

20

company featured in the Empire series. Empire further admits that Fox promotes,

21

markets and sells music featured on the Empire series using the Empire name and

22

logos. Empire is without knowledge or information sufficient to form a belief

23

about the truth of the remaining allegations in paragraph 23, which therefore are

24

denied.

25

24.

Empire admits that Fox promotes, markets and sells music featured on

26

the Empire series using the Empire name and logos. Empire is without

27

knowledge or information sufficient to form a belief about the truth of the

28

allegations in paragraph 24, which therefore are denied.


-3EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT
26082199

EXHIBIT 3
38

Case 2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document 15
41-4Filed
Filed
12/15/15Page
Page
4512
of 176
ID
Case
06/04/15
5 of
PagePage
ID #:73
#:693

1
2

25.

Empire admits that the two logos depicted in paragraph 25 are

examples of the different logos used by Fox to promote the Empire series.

26.

Empire admits that the two logos depicted in paragraph 26 are

examples of the different logos used by Fox to promote the sale of the music

featured on the Empire series.

DEFENDANT EMPIRES CLAIMS

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

T ROUTMAN S ANDERS LLP

27.

Empire admits that its outside counsel sent a letter to Foxs General

Counsel dated February 16, 2015 asserting trademark infringement. To the extent

paragraph 27 purports to describe, characterize or quote the terms of the February

10

16, 2015 letter, the document speaks for itself, should be read as a whole, and

11

provides only as stated therein. Empire refers the Court to the document for a full

12

and complete statement of its content. Empire is without knowledge or information

13

sufficient to form a belief about the truth of the remaining allegations in paragraph

14

27, which therefore are denied.

15

28.

Empire admits that its outside counsels February 16, 2015 letter

16

asserted trademark infringement and likelihood of confusion against Fox. To the

17

extent paragraph 28 purports to describe, characterize or quote the terms of the

18

February 16, 2015 letter, the document speaks for itself, should be read as a whole,

19

and provides only as stated therein. Empire refers the Court to the document for a

20

full and complete statement of its content. Empire denies the remaining allegations

21

in paragraph 28.

22

29.

Empire admits that its outside counsels February 16, 2015 letter

23

asserted that Fox threatens to tarnish the brand and harm the goodwill built by

24

Empire. To the extent paragraph 29 purports to describe, characterize or quote the

25

terms of the February 16, 2015 letter, the document speaks for itself, should be read

26

as a whole, and provides only as stated therein. Empire refers the Court to the

27

document for a full and complete statement of its content. Empire denies the

28

remaining allegations in paragraph 29.


-4EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT
26082199

EXHIBIT 3
39

Case 2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document 15
41-4Filed
Filed
12/15/15Page
Page
4612
of 176
ID
Case
06/04/15
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PagePage
ID #:74
#:694

30.

requested Fox to immediately preserve all documents, data, and tangible things in

its possession, custody, or control that are potentially relevant to the subject matter

of this dispute. To the extent paragraph 30 purports to describe, characterize or

quote the terms of the February 16, 2015 letter, the document speaks for itself,

should be read as a whole, and provides only as stated therein. Empire refers the

Court to the document for a full and complete statement of its content.

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

T ROUTMAN S ANDERS LLP

Empire admits that its outside counsels February 16, 2015 letter

31.

To the extent paragraph 31 refers to discussions between the parties

that followed Foxs receipt of Empires February 16, 2015 letter, the parties

10

expressly designated such discussions as protected compromise offers and

11

negotiations under Federal Rule of Evidence 408 which states that [e]vidence of

12

offering -- or accepting, promising to accept, or offering to accept -- a valuable

13

consideration in compromising or attempting to compromise the claim is not

14

admissible. Fed. R. Evid. 408. As such, this paragraph contains protected matters

15

that Foxs lawyers deliberately disregarded and know are inadmissible as evidence

16

in trial. Empire denies the remaining allegations in paragraph 31.

17

32.

Empire admits its outside counsel sent a March 6, 2015 letter to Foxs

18

Senior Vice President of Intellectual Property under the heading and protections of

19

Federal Rule of Evidence 408 which states that [e]vidence of offering -- or

20

accepting, promising to accept, or offering to accept -- a valuable consideration in

21

compromising or attempting to compromise the claim is not admissible. Fed. R.

22

Evid. 408. As such, this paragraph contains protected matters that Foxs lawyers

23

deliberately disregarded and know are inadmissible as evidence. Further, to the

24

extent paragraph 32 purports to describe, characterize or quote the terms of the

25

March 16, 2015 letter, the document speaks for itself, should be read as a whole,

26

and provides only as stated therein. Empire refers the Court to the document for a

27

full and complete statement of its content. Empire denies the remaining allegations

28

in paragraph 32.
-5EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT
26082199

EXHIBIT 3
40

Case 2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document 15
41-4Filed
Filed
12/15/15Page
Page
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ID
Case
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ID #:75
#:695

1
2

33.

about the truth of the allegations in paragraph 33, which therefore are denied.

COUNT ONE DECLARATORY JUDGMENT

REGARDING FEDERAL TRADEMARK INFRINGEMENT

(28 U.S.C. 2201 et seq. and 15 U.S.C. 1125(a))

6
7

34.

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

Empire repeats and incorporates by reference paragraphs 1-33 of this

Answer.

T ROUTMAN S ANDERS LLP

Empire is without knowledge or information sufficient to form a belief

35.

Empire admits that it has alleged trademark infringement against Fox.

To the extent that this paragraph refers to settlement communications, such

10

communications are protected by Federal Rule of Evidence 408, which states that

11

[e]vidence of offering -- or accepting, promising to accept, or offering to accept

12

-- a valuable consideration in compromising or attempting to compromise the

13

claim is not admissible. Fed. R. Evid. 408. As such, this paragraph contains

14

protected matters that Foxs lawyers deliberately ignored and know are

15

inadmissible as evidence in trial. Empire denies the remaining allegations in

16

paragraph 35.

17

36.

Empire denies the allegations in paragraph 36.

18

37.

Empire admits that an actual case or controversy exists between

19

Empire and Fox over Empires asserted trademarks. Empire denies the remaining

20

allegations in paragraph 37.

21

38.

Empire denies the allegations in paragraph 38.

22

39.

Empire denies the allegation in paragraph 39.

23

40.

Empire admits that Fox is seeking the requested declaratory judgment

24

from this Court, but denies that Fox is entitled to such relief. Empire denies the

25

remaining allegations in paragraph 40.

26
27
28
-6EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT
26082199

EXHIBIT 3
41

Case 2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document 15
41-4Filed
Filed
12/15/15Page
Page
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ID
Case
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ID #:76
#:696

COUNT TWO DECLARATORY

JUDGMENT REGARDING FEDERAL TRADEMARK DILUTION

(28 U.S.C. 2201 et seq. and 15 U.S.C. 1125(c))

4
5

41.
Answer.

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

T ROUTMAN S ANDERS LLP

Empire repeats and incorporates by reference paragraphs 1-33 of this

42.

Empire admits that it has asserted that Fox threatens to tarnish the

brand and harm the goodwill built by Empire. To the extent that this paragraph

refers to settlement communications, such communications are protected by Federal

Rule of Evidence 408, which states that [e]vidence of offering -- or accepting,

10

promising to accept, or offering to accept -- a valuable consideration in

11

compromising or attempting to compromise the claim is not admissible. Fed. R.

12

Evid. 408. As such, this paragraph contains protected matters that Foxs lawyers

13

deliberately ignored and know are inadmissible as evidence in trial. Empire denies

14

the remaining allegations in paragraph 42.

15

43.

Empire denies the allegations in paragraph 43.

16

44.

Empire denies the allegations in paragraph 44.

17

45.

Empire admits that an actual case or controversy exists between

18

Empire and Fox over Empires asserted trademarks. Empire denies the remaining

19

allegations in paragraph 45.

20

46.

Empire denies the allegation in paragraph 46.

21

47.

Empire denies the allegation in paragraph 47.

22

48.

Empire admits that Fox is seeking the requested declaratory judgment

23

from this Court, but denies that Fox is entitled to such relief. Empire denies the

24

remaining allegations in paragraph 48.

25
26
27
28
-7EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT
26082199

EXHIBIT 3
42

Case 2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document 15
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Filed
12/15/15Page
Page
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ID
Case
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PagePage
ID #:77
#:697

COUNT THREE DECLARATORY

JUDGMENT REGARDING STATE UNFAIR COMPETITION

(28 U.S.C. 2201 et seq. and Cal. Bus. Prof Code 17200 et seq.)

4
5

49.
Answer.

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

T ROUTMAN S ANDERS LLP

Empire repeats and incorporates by reference paragraphs 1-33 of this

50.

Empire admits that it has asserted unfair competition against Fox. To

the extent that this paragraph refers to settlement communications, such

communications are protected by Federal Rule of Evidence 408, which states that

[e]vidence of offering -- or accepting, promising to accept, or offering to accept

10

-- a valuable consideration in compromising or attempting to compromise the

11

claim is not admissible. Fed. R. Evid. 408. As such, this paragraph contains

12

protected matters that Foxs lawyers deliberately ignored and know are

13

inadmissible as evidence in trial. Empire denies the remaining allegations in

14

paragraph 50.

15

51.

Empire denies the allegations in paragraph 51.

16

52.

Empire admits that an actual case or controversy exists between

17

Empire and Fox over Empires asserted trademarks. Empire denies the remaining

18

allegations in paragraph 52.

19

53.

Empire denies the allegation in paragraph 53.

20

54.

Empire denies the allegation in paragraph 54.

21

55.

Empire admits that Fox is seeking the requested declaratory judgment

22

from this Court, but denies that Fox is entitled to such relief. Empire denies the

23

remaining allegations in paragraph 55.

24

PRAYER FOR RELIEF

25

56.

The wherefore clause contains a prayer for relief to which no

26

response is required. To the extent that the paragraphs of that clause may be

27

deemed to allege any factual or legal entitlement to the relief requested, Empire

28

denies each and every such allegation and specifically denies that Fox is entitled to
-8EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT
26082199

EXHIBIT 3
43

Case2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document15
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of 12
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#:698

any relief, including, but not limited to, the relief requested in subparts A through

D thereof.

AFFIRMATIVE DEFENSES

57.

forth herein where such burden would otherwise rest with Fox, Empire alleges the

following affirmative defenses to the Complaint and to the relief sought therein:

First Affirmative Defense

(Failure to State a Claim)

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

10
T ROUTMAN S ANDERS LLP

Without assuming the burden of proof as to any of the defenses set

58.

Foxs Complaint fails in whole or in part to state a claim against

Empire upon which relief may be granted.

11

Second Affirmative Defense

12

(Improper Declaratory Judgment Action)


59.

13
14

Foxs Complaint is an improper anticipatory filing intended to deprive

Empire its natural position as plaintiff in this action.

15

Third Affirmative Defense

16

(No Injunction)
60.

17

Fox has not shown and cannot show that a balance of any of the

18

traditional equities (e.g., a likelihood of success, irreparable harm, an inadequate

19

remedy at law, balancing of the harms, or public interest) favor an injunction in its

20

favor.

21

Fourth Affirmative Defense

22

(Unclean Hands)

23

61.

Fox is not entitled to any relief, equitable or otherwise, because it has

24

unclean hands by virtue of its infringement of Empires trademarks and other

25

wrongful conduct.

26
27
28
-9EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT
26082199

EXHIBIT 3
44

Case
Case2:15-cv-02158-PA-FFM
2:15-cv-02158-PA-FFM Document
Document15
41-4Filed
Filed
06/04/15
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of 12
of 176
Page
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ID #:79
ID
#:699

Fifth Affirmative Defense

(Unjust Enrichment)

62.

been unjustly enriched by virtue of its infringement of Empires trademarks and

other wrongful conduct.

WHEREFORE, Empire prays as follows:

(a)

that Foxs Complaint be dismissed with prejudice;

(b)

that Fox be required to pay the costs and expenses, including

attorneys fees, which Empire incurs in defense of this proceeding; and

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

10
T ROUTMAN S ANDERS LLP

Fox is not entitled to any relief, equitable or otherwise, because it has

(c)

that Empire have such other and further relief as this Court deems just

11

and proper.

12

Dated: June 4, 2015

TROUTMAN SANDERS LLP

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By: /s/ Paul L. Gale


Paul L. Gale
Peter N. Villar
John M. Bowler
Michael D. Hobbs

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Attorneys for Defendant


Empire Distribution Inc.

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EMPIRE DISTRIBUTION, INC.S ANSWER TO COMPLAINT


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DEMAND FOR JURY TRIAL

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In accordance with Fed. R. Civ. P. 38, Empire demands a trial by jury on all
issues so triable.
Dated: June 4, 2015

TROUTMAN SANDERS LLP

By: /s/ Paul L. Gale


Paul L. Gale
Peter N. Villar
John M. Bowler
Michael D. Hobbs

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Attorneys for Defendant


Empire Distribution Inc.

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#:701

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PAUL L. GALE (SBN 065873)


paul.gale@troutmansanders.com
PETER N. VILLAR (SBN 204038)
peter.villar@troutmansanders.com
TROUTMAN SANDERS LLP
5 Park Plaza, Suite 1400
Irvine, California 92614-2545
Telephone: (949) 622-2704
Facsimile: (949) 769-2052
JOHN M. BOWLER (pro hac vice)
john.bowler@troutmansanders.com
MICHAEL D. HOBBS (pro hac vice)
michael.hobbs@troutmansanders.com
TROUTMAN SANDERS LLP
Bank of America Plaza
600 Peachtree Street NE, Suite 5200
Atlanta, Georgia 30308-2216
Attorneys for Defendant and
Counterclaimant Empire Distribution Inc.

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UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14

WESTERN DIVISION

15
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17
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TWENTIETH CENTURY FOX


TELEVISION, a division of
TWENTIETH CENTURY FOX
FILM CORPORATION, a Delaware
company, and FOX
BROADCASTING COMPANY, a
Delaware corporation,

19

Plaintiffs,

20
21
22

v.
EMPIRE DISTRIBUTION, INC., a
California corporation,
Defendant.

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24
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26
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Caption continued on next page.

Case No. 2:15-cv-02158-PA-FFM


Hon. Percy Anderson
EMPIRE DISTRIBUTION, INC.S
COUNTERCLAIMS FOR:
1. FEDERAL TRADEMARK
INFRINGEMENT
2. FEDERAL TRADEMARK
DILUTION
3. FEDERAL UNFAIR COMPETITION
4. CALIFORNIA STATUTORY
UNFAIR COMPETITION AND
FALSE ADVERTISING
5. CALIFORNIA COMMON LAW
TRADEMARK INFRINGEMENT
6. CALIFORNIA TRADEMARK
DILUTION
DEMAND FOR JURY TRIAL

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EMPIRE DISTRIBUTION, INC., a


California corporation,

Counterclaimant,

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5

v.

TWENTIETH CENTURY FOX


TELEVISION, a division of
TWENTIETH CENTURY FOX
FILM CORPORATION, a Delaware
company, and FOX
BROADCASTING COMPANY, a
Delaware corporation,

Counter-Defendants.

6
7

10
Defendant and Counterclaimant Empire Distribution, Inc. (Empire) hereby

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asserts its Counterclaims against Plaintiffs and Counter-Defendants Twentieth

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Century Fox Television, a division of Twentieth Century Fox Film Corporation,

14

and Fox Broadcasting Company (collectively Fox) as follows:


INTRODUCTION

15
1.

16

Fox filed this suit as a preemptive ploy to deprive Empire of its natural

17

position as the plaintiff. This case arises out of Foxs willful infringement of

18

Empires well-established trademarks and Foxs unfair, unlawful and deceptive

19

business practices in violation of federal and state law. Foxs rampant,

20

unauthorized use of the Empire name to promote, market, distribute and sell its

21

television program and music has caused, and will continue to cause, significant

22

confusion to Empires customers and irreparable harm to the identity and brand that

23

Empire has built over many years.


THE PARTIES

24
2.

25
26

at 16 Maiden Lane, San Francisco, CA 94108.


3.

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Empire is a California corporation with its principal place of business


Upon information and belief, Counter-Defendant Twentieth Century

Fox Film Corporation (Fox Film) is a Delaware corporation with its principal
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place of business at 10201 West Pico Boulevard, Los Angeles, California 90064.

Upon information and belief, Fox Film purports to own certain intellectual property

rights in and to the television series Empire and the music therefrom.

4.

Fox Television (Fox TV) is a division of Fox Film. Fox TV creates and produces

television programs.

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Upon information and belief, Counter-Defendant Twentieth Century

5.

Upon information and belief, Counter-Defendant Fox Broadcasting

Company (Fox Broadcasting) is a Delaware corporation with its principal place

of business at 10201 West Pico Boulevard, Los Angeles, California 90064. Upon

10

information and belief, Fox Broadcasting operates the Fox Network, a national

11

broadcast television network with 203 affiliates in the United States.

12

JURISDICTION AND VENUE


6.

13

This Court has original jurisdiction over this action under 28 U.S.C.

14

1331 and 1338(a) and (b) as it involves claims presenting federal questions under

15

15 U.S.C. 1121(a) (actions arising under the Lanham Act have original

16

jurisdiction in federal courts). This Court also has supplemental jurisdiction over

17

the state statutory and common law claims under 28 U.S.C. 1338(b) and 1367(a)

18

because these claims are so related to the claims under which the Court has original

19

jurisdiction that they form part of the same case and controversy under Article III of

20

the United States Constitution.

21

7.

Fox is subject to this Courts general and specific personal jurisdiction

22

because it is domiciled in the State of California and has sufficient minimum

23

contacts with the State of California.

24

8.

Venue is proper in this District under 28 U.S.C. 1391(b)(1) and (2)

25

because the parties are residents of this District and a substantial part of the acts or

26

events giving rise to the claims occurred in this District.

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-3EMPIRE DISTRIBUTION, INC.S COUNTERCLAIMS
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FACTS COMMON TO ALL COUNTERCLAIMS

9.

company that continuously since 2010 has released albums in a wide variety of

genres, specifically focusing on hip hop, rap, and R&B, under the trademarks

EMPIRE, EMPIRE DISTRIBUTION and EMPIRE RECORDINGS (the

Marks). Empire promotes, markets and sells its music through various channels

of commerce including, but not limited to, its websites (see http://empi.re and

www.empiredistribution.com).

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Empire is a well-known music record label and music distribution

10.

Over the past five years, Empire has become one of the largest

10

distributors and producers of music in the country. It has had numerous Billboard

11

charting releases from well-recognized artists under its label, having partnered with

12

notable artists such as Kendrick Lamar, Migos, Too Short, Slim Thug, Rich Homie

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Quan, Sage the Gemini and Snoop Dogg. Songs released by Empire under the

14

EMPIRE DISTRIBUTION and EMPIRE RECORDINGS mark have earned

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platinum and gold records, and the label has sponsored sold-out showcases under

16

its name at events such as South by Southwest.

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11.

Under both Marks, Empire has built relationships across the music

18

industry to successfully record, promote, and distribute platinum-and gold-certified

19

records. As part of its partnership with Universal/Republic Records, Empire was

20

recognized by the Recording Industry Association of America for its role in selling

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over 1,500,000 records for the artist Sage the Gemini.

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12.

The following images depict the Marks in use alongside the Republic

23

Records mark in Empire and Republics RIAA-certified platinum plaque

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commemorating their sale of over 1,000,000 copies of the record Gas Pedal and

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their sale of over 500,000 copies of the record Red Nose.

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13.

Empire and its partners have now sold over 3,000,000 records for artist

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Sage the Gemini. Red Nose is being certified platinum (over one million sales)

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and Gas Pedal is almost double platinum.

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14.

of those records. Separately, Empire is eng


engaged
aged in an ongoing relationship with

Atlantic Records to co-develop,


develop, distribute, and market artists. Through its

partnership with eOne and others, Empire has distributed, marketed, and sold

thousands of physical records under its Marks domestically and aro


around
und the world.

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The Marks have been used prominently in press releases and coverage

15.

Beyond this widespread exposure, the Marks have been the subject of

broad advertising and promotional campaigns


campaigns,, leading to a prominent presence,

both online and offline,, as the images below demonstrate. The Marks became a

recognized symbol for quality music and music services years ago. As a result, the

10

Marks are well known among the relevant consuming public as identifying

11

Empires goods and services.


16.

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For example, one of Empires Marks was promoted online and in

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person at the A3C hip hop festival in October 2012


2012,, as the image below

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demonstrates.

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One of Empire
Empires Marks was used to promote the company as a leader

in the music recording, promotion, and digital distribution space as part of a

Beatstars seminar in May 2013.

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18.

One of Empires Marks was included among other prominent music

and consumer brands at the BET awards weekend in June 2013.

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developed in the Marks, it cannot permit their unauthorized use, because such use is

likely to cause confusion among the public as to the source, origin, sponsorship, or

affiliation of services identified by the Marks, but not authorized by Empire.

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Due to the tremendous amount of valuable goodwill Empire has

20.

The recent debut of Foxs television program Empire -- over five

years after Empire began using the Marks -- has created significant confusion with

Empires products and services in the marketplace. The program follows the

fictional hip hop music label named Empire Enterprises. Producers of Empire

have publicly stated that the shows events, business, and characters are based on

10

entities and individuals from the real-world music industry. Numerous consumers,

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artists and Empires business partners have expressed confusion to Empire as to

12

whether the fictional Empire program has any affiliation or business relationship

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with the real-life Empire, which it does not.

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21.

Foxs use of the Empire mark below in all upper case letters, the

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same font treatment as in Empires marks, has significantly exacerbated this

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confusion.

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22.

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Foxs use of a city skyline graphic in conjunction with the Empire

mark, a combination originating with and made famous by Empire, in both


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marketing materials and merchandise, such as the gold necklace depicted below

that is worn by one of the main characters on Foxs tel


television
evision series, has made the

confusion between the marks inescapable.

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23.

Moreover, Fox advertises, distributes and sells music under the

12

Empire mark. Because this music shares the same search terms and genres as

13

Empires music, the albums and songs have been positioned in close proximity in

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online stores such as iTunes, Google Play, Amazon.com, and Spotify.. As

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demonstrated by the images below, tthis further perpetuates damaging public

16

confusion.

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24.

There is nothing fictional about Foxs music distribution operations.

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Like other record labels, Fox has an online account with Mediabase
Mediabase,, a music

13

industry service that monitors radio station airplay in the United States and

14

Canadian markets and provides in-depth


depth analytical tools for radio and record

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industry professionals.

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25.

Fox also promotes, markets and advertises its music and artists under

the Empire mark at radio stations, live performances, events, physical record

stores, and other venues where Empire promotes, markets and advertises its music

and artists.

26.

For example, Empires franchise artist, Rayven Justice, recently met

with internationally renowned DJ Crisco Kidd, at a Dallas radio station to promote

his new single. Foxs Empire artists, Yazz and Jussie, met with Crisco Kidd the

very next day, at the very same radio station, to promote their new single.

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27.

The rap artist Yazz from Foxs Empire program was recently

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promoted, with the Empire mark, alongside multiple Empire rap artists, including

26

Dizzy Wright, Hopsin, Jarren Benton, Rayven Justice and Pia Mia, for a concert

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sponsored by one of the largest radio stations in the country, Power 106 FM.

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28.

19

Remarkably, Yazz is the only artist credited with the Empire logo,

20

despite there being five other artists affiliated with Empire the true owner of the

21

Mark.
29.

22

Foxs misuse of the Empire name has confused other artists and their

23

followers. For example, Shaggy, a Grammy award winner and one of the best

24

selling reggae musicians of all time, posted Empires logo on the internet, and one

25

follower commented #teamCookie in reference to one of the lead characters on

26

Foxs Empire program, Cookie Lyon.

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30.

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A rap and hip hop music company, Gslaps Entertainment, recently

24

posted a comment on its Facebook site praising Empire for the fame, success and

25

longevity of the Empire logo over the years, yet had to clarify that it was NOT

26

the TV show.

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31.

The Lanham Act and similar state laws prohibit Foxs use of a

25

trademark in connection with the advertising or sale of any goods or services when

26

such use is likely to cause confusion as to the source of those goods or services. 15

27

U.S.C. 1114, 1125(a). The Lanham Act also prohibits any person or entity from

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using a word or name in a manner that is likely to cause confusion as to the

affiliation, connection or association with another person or entity.

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32.

Foxs unauthorized use of the Empire Marks has already confused and

is likely to continue to confuse members of the public into believing that Fox is an

approved licensee of or otherwise affiliated with Empire, the very type of deception

that these laws prohibit. Moreover, Foxs Empires portrayal of a label run by a

homophobic drug dealer prone to murdering his friends, threatens to tarnish the

brand and harm the goodwill built by Empire.

FIRST COUNTERCLAIM

10

(Federal Trademark Infringement under 15 U.S.C. 1125(a) against All

11

Counter-Defendants)
33.

12
13

Empire realleges and incorporates herein the allegations contained in

paragraphs 1-32 of this Counterclaim.


34.

14

Empire has valid trademarks that are entitled to protection, including

15

the marks EMPIRE, EMPIRE DISTRIBUTION and EMPIRE

16

RECORDINGS.
35.

17

Empire has continuously and extensively used its Marks in commerce

18

to identify its goods and services in the United States and worldwide, long before

19

Fox began using the Empire mark.

20

36.

Fox has used, and continues to use, its virtually identical and

21

confusingly similar Empire name, along with other words, terms, names,

22

symbols, or devices, or any combination thereof, in commerce, to market, promote,

23

advertise and sell its goods and services, without Empires consent.

24

37.

Foxs improper and unauthorized use of the Empire name constitutes

25

false designations of origin, false or misleading descriptions of fact, or false or

26

misleading representations of fact, which is likely to cause confusion, to cause

27

mistake, or to deceive others as to the affiliation, connection, or association of Fox

28
- 17 EMPIRE DISTRIBUTION, INC.S COUNTERCLAIMS
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with Empire, or as to the origin, sponsorship, or approval of Foxs goods, services,

or commercial activities by Empire, in violation of 15 U.S.C. 1125(a).

38.

geographic origin of its goods, services, or commercial activities, through its

improper and unauthorized use of the Empire name in commercial advertising or

promotion, in violation of 15 U.S.C. 1125(a).

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

T ROUTMAN S ANDERS LLP

Fox also misrepresents the nature, characteristics, qualities, or

39.

As a result of Foxs trademark infringement and wrongful conduct,

Empire has suffered substantial and irreparable injury, and will continue to suffer

irreparable injury unless such conduct is preliminarily and permanently enjoined by

10

this Court. This injury includes, but is not limited to, the loss of goodwill and

11

reputation that cannot be remedied solely through damages.

12

40.

Empire has no adequate remedy at law and is entitled to preliminary

13

and permanent injunctive relief pursuant to 15 U.S.C. 1116 restraining and

14

enjoining Fox and its officers, directors, agents, employees, representatives, and

15

any persons or entities acting thereunder, in concert with, or on their behalf, from

16

using the Empire Marks in commerce.

17

41.

Pursuant to 15 U.S.C. 1117, Empire is also entitled to recover Foxs

18

profits; all damages sustained by Empire; up to three times the amount of actual

19

damages; and the costs incurred in this action.

20

42.

Foxs willful use of Empires Marks without excuse or justification

21

renders this an exceptional case entitling Empire to recover its reasonable attorneys

22

fees.

23

SECOND COUNTERCLAIM

24

(Federal Trademark Dilution under 15 U.S.C. 1125(c) against all Counter-

25

Defendants)

26
27

43.

Empire realleges and incorporates herein the allegations contained in

paragraphs 1-42 of this Counterclaim.

28
- 18 EMPIRE DISTRIBUTION, INC.S COUNTERCLAIMS
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1
2

44.

distinctive well before Foxs admittedly recent use of the Empire mark.

45.

and sale of its goods and services is likely to cause dilution by blurring or

tarnishment of Empires Marks. For example, Foxs Empires portrayal of a

record label run by a homophobic drug dealer prone to murdering his friends

threatens to tarnish the brand and harm the goodwill built by Empire.

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

Foxs use of the Empire name in connection with the advertisement

T ROUTMAN S ANDERS LLP

Empires Marks are famous and distinctive, and became famous and

46.

As a result of Foxs trademark infringement and wrongful conduct,

Empire has suffered substantial harm and is entitled to recover Foxs profits; all

10

damages sustained by Empire; up to three times the amount of actual damages; and

11

the costs incurred in this action, pursuant to 15 U.S.C. 1117.

12

47.

Foxs willful use of Empires Marks without excuse or justification

13

renders this an exceptional case entitling Empire to recover its reasonable attorneys

14

fees.

15

48.

Empire has suffered, and will continue to suffer, irreparable injury.

16

Unless such conduct is preliminarily and permanently enjoined by this Court, Fox

17

will continue to engage in such wrongful conduct to the detriment of Empire and its

18

Marks. This injury includes, but is not limited to, the loss of goodwill and

19

reputation that cannot be remedied through damages.

20

49.

Empire has no adequate remedy at law and is entitled to preliminary

21

and permanent injunctive relief pursuant to 15 U.S.C. 1116, restraining and

22

enjoining Fox and its agents, servants, employees, and all persons acting

23

thereunder, in concert with, or on their behalf, from using the Marks in commerce.

24

THIRD COUNTERCLAIM

25

(Federal Unfair Competition under 15 U.S.C. 1125(a) against all Counter-

26

Defendants)

27
28

50.

Empire realleges and incorporates herein the allegations contained in

paragraphs 1-49 of this Counterclaim.


- 19 EMPIRE DISTRIBUTION, INC.S COUNTERCLAIMS
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51.

longstanding and hard-earned goodwill in its Marks and the reputation Empire

established in connection with its products and services, as well as in order to

confuse consumers as to the origin and sponsorship of Foxs goods and services

and to unfairly compete by promoting those goods and services in commerce as

those of Empire.

52.

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

Foxs unauthorized and wrongful conduct also has deprived and will

continue to deprive Empire of the ability to control consumer perception of

products and services offered under its Marks.

10
T ROUTMAN S ANDERS LLP

Fox has deliberately and willfully attempted to trade on Empires

53.

Foxs conduct in adopting and using its Empire name is likely to

11

cause confusion, mistake or deception as to the affiliation, connection or association

12

of Fox and its goods and services with Empire, and as to the sponsorship, origin or

13

approval of Fox and its goods and services, in violation of 15 U.S.C. 1125(a).

14

54.

As a result of Foxs trademark infringement and wrongful conduct,

15

Empire has suffered, and will continue to suffer, irreparably injury. Unless such

16

conduct is preliminarily and permanently enjoined by this Court, Fox will continue

17

to engage in such wrongful conduct to the detriment of Empire and its Marks. This

18

injury includes, but is not limited to, the loss of goodwill and reputation that cannot

19

be remedied through damages.

20

55.

Empire has no adequate remedy at law and is entitled to preliminary

21

and permanent injunctive relief pursuant to 15 U.S.C. 1116 restraining and

22

enjoining Fox and its agents, servants, employees, and all persons acting

23

thereunder, in concert with, or on their behalf, from using the Empire Marks in

24

commerce.

25

56.

Pursuant to 15 U.S.C. 1117, Empire is also entitled to recover Foxs

26

profits; all damages sustained by Empire; up to three times the amount of actual

27

damages; and the costs incurred in this action.

28
- 20 EMPIRE DISTRIBUTION, INC.S COUNTERCLAIMS
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57.

renders this an exceptional case entitling Empire to recover its reasonable attorneys

fees.

FOURTH COUNTERCLAIM

(Statutory Unfair Competition and False Advertising under California

Business and Professions Code 17200 and 17500 et seq. against all Counter-

Defendants)

8
9

58.

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

Empire realleges and incorporates herein the allegations contained in

paragraphs 1-57 of this Counterclaim.

10
T ROUTMAN S ANDERS LLP

Foxs willful use of Empires Marks without excuse or justification

59.

By the conduct described above, Fox has engaged in unlawful, unfair

11

and/or fraudulent business acts or practices, and unfair, deceptive, untrue or

12

misleading advertising.

13

60.

By the conduct described above, Fox has made untrue and misleading

14

statements in connection with its promotion, marketing, advertisement and sale of

15

its goods and services, which they knew, or by the exercise of reasonable care

16

should have known, were untrue or misleading.

17

61.

Foxs untrue and misleading statements in connection with its

18

promotion, marketing, advertisement and sale of its goods and services are likely to

19

deceive members of the public.

20

62.

Foxs wrongful conduct constitutes unfair competition and false

21

advertising under California Business and Professions Code 17200 et seq. and

22

17500 et seq.

23

63.

As a direct and proximate result of Foxs conduct, Empire has

24

suffered, and will continue to suffer, damages to its business, reputation and

25

goodwill.

26

64.

27

Fox should be ordered to pay restitution and disgorge its profits gained

from its wrongful conduct.

28
- 21 EMPIRE DISTRIBUTION, INC.S COUNTERCLAIMS
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65.

Empire will continue to suffer irreparable injury for which there is no adequate

remedy at law.

FIFTH COUNTERCLAIM

(California Common Law Trademark Infringement against all Counter-

Defendants)

7
8

66.

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

Empire realleges and incorporates herein the allegations contained in

paragraphs 1-65 of this Counterclaim.

T ROUTMAN S ANDERS LLP

Unless Foxs conduct is preliminarily and permanently enjoined,

67.

Foxs use of the Empire name to advertise, market, promote and sell

10

its products and services has created a likelihood of confusion, mistake or

11

deception, and therefore infringes on Empires Marks in violation of the common

12

law of the State of California.

13

68.

As a direct and proximate result of Foxs conduct, Empire has

14

suffered, and will continue to suffer, damages to its business, reputation and

15

goodwill.

16

69.

Unless Foxs conduct is preliminarily and permanently enjoined,

17

Empire will continue to suffer irreparable injury for which there is no adequate

18

remedy at law.

19

SIXTH COUNTERCLAIM

20

(Trademark Dilution under California Business and Professions Code 14247

21

against all Counter-Defendants)

22
23

70.

paragraphs 1-69 of this Counterclaim.

24
25

Empire realleges and incorporates herein the allegations contained in

71.

Empires Marks are famous and distinctive, and they became famous

and distinctive well before Foxs unauthorized use of the Empire name.

26

72.

Foxs willful use of the Empire name in connection with the

27

advertisement and sale of its goods and services is likely to cause dilution by

28

blurring or tarnishment of Empires Marks.


- 22 EMPIRE DISTRIBUTION, INC.S COUNTERCLAIMS
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73.

irreparable injury, and has no adequate remedy at law.

3
4

74.
75.

S UITE 1400

I RVINE , CA 92614 -2545

Because Fox willfully intended to cause dilution, it should be required

to pay Empire up to three times Foxs profits from, and up to three times all

damages suffered by reason of, the wrongful manufacture, use, display, or sale,

under California Business and Professions Code 14250.

5 P ARK P LAZA

Empire is entitled to an injunction against Foxs commercial use of the

Marks under California Business and Professions Code 14247.

T ROUTMAN S ANDERS LLP

Empire has suffered, and will continue to suffer, substantial and

PRAYER FOR RELIEF

10

Wherefore, Empire prays for relief as follows:

11

1.

That the Court award judgment to Empire on all of its Counterclaims;

12

2.

That Fox, its officers, directors, agents, employees, representatives,

13

and any persons or entities acting in concert or participation with them, be

14

preliminarily and permanently enjoined from using in commerce the Empire

15

name, or any variant thereof which is a colorable imitation of other otherwise likely

16

to be mistaken or confused with Empires Marks, pursuant to 15 U.S.C. 1116,

17

California Business and Professions Code 14247, 17203, or as otherwise

18

available under federal or state statutory or common law;


3.

19

That Fox, its officers, directors, agents, employees, representatives and

20

any persons or entities acting in concert or participation with them, be preliminarily

21

and permanently enjoined from causing any dilution, blurring and/or tarnishment to

22

Empires Marks, pursuant to 15 U.S.C. 1116, California Business and Professions

23

Code 14247, or as otherwise available under federal or state statutory or common

24

law;

25

4.

That Fox pay to Empire any and all profits derived by Fox and all

26

damages sustained by Empire by reason of the acts hereinabove complained of, plus

27

additional damages up to three times above the amount found as actual damages,

28
- 23 EMPIRE DISTRIBUTION, INC.S COUNTERCLAIMS
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pursuant to 15 U.S.C. 1117(a), California Business and Professions Code

14250, or as otherwise available under federal or state statutory or common law;

5.

from its wrongful conduct, as available under federal or state statutory or common

law;

6.

attorneys fees pursuant to 15 U.S.C. 1117(a), or other applicable federal or state

statutory or common law;

10

7.

S UITE 1400

I RVINE , CA 92614 -2545

12

That Fox pay pre-judgment and post-judgment interest to the fullest

extent permitted by law; and

11
5 P ARK P LAZA

That Fox reimburse Empire for all of its reasonable costs and

7
9

T ROUTMAN S ANDERS LLP

That Fox pay restitution and disgorge its profits for all ill-gotten gains

8.

That the Court grant such other relief as it deems just, equitable or

appropriate.

13
14

Dated: June 4, 2015

TROUTMAN SANDERS LLP

15
16

By: /s/ Paul L. Gale


Paul L. Gale
Peter N. Villar
John M. Bowler
Michael D. Hobbs

17
18
19

Attorneys for Defendant and


Counterclaimant Empire
Distribution Inc.

20
21
22
23
24
25
26
27
28
- 24 -

EMPIRE DISTRIBUTION, INC.S COUNTERCLAIMS


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DEMAND FOR JURY TRIAL

2
3
4
5

In accordance with Fed. R. Civ. P. 38, Empire demands a trial by jury on all
issues so triable.
Dated: June 4, 2015

TROUTMAN SANDERS LLP

By: /s/ Paul L. Gale


Paul L. Gale
Peter N. Villar
John M. Bowler
Michael D. Hobbs

7
8
9

Attorneys for Defendant and


Counterclaimant Empire
Distribution Inc.

10

S UITE 1400

I RVINE , CA 92614 -2545

5 P ARK P LAZA

T ROUTMAN S ANDERS LLP

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 25 -

EMPIRE DISTRIBUTION, INC.S COUNTERCLAIMS


25293891

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71

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 79 of 176 Page ID


#:727

EXHIBIT 5

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 80 of 176 Page ID


#:728

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3
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5
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PAULL. GALE (SBN 065873)


paul.gale@troutmansanders.com
PETER N:"VILLAR (SBN 204038)
peter.villar@troutmansanders.com
TROUTMAN SANDERS LLP
5 Park Plaza, Suite 1400
Irvine, California 92614-2545
Telephone: (949) 622-2704
Facsimile: (949) 769-2052
JOHN M. BOWLER (pro hac vice)

j o_hn. bowler@troutmansanders.com

MICHAEL 0: HOBBS (pro hac vice)


michael.hobbs@troutmansanders.com
LINDSAY MITCHELL RENNER (pro hac vice)
linds~y.henner@troutmansanders.com

TROUTMAN S'ANDERS LLP


Bank of America Plaza
600 Peachtree Street NE, Suite 5200
Atlanta, Georgia 30308-2216

Attorneys for Defendant-Counterclaimant


Empire Distribution Inc.

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15

WESTERN DIVISION

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19
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TWENTIETH CENTURY FOX


TELEVISION, a division of
TWENTIETH CENTURY FOX
FILM CORPORATION, a Delaware
com_paI}y, and FOX
BROADCASTING COMPANY, a
Delaware corporation,
Plaintiffs,

21
22
23
24

Case No. 2:15-cv-02158-PA-FFM


Hon. Percy Anderson
EMPIRE DISTRIBUTION, INC.'S
RESPONSES TO FOX'S FIRST SET OF
INTERROGATORIES

v.
EMPIRE DISTRIBUTION, INC., a
California corporation,
Defendant.

25
26

AND RELATED COUNTERCLAIM

27
28
EMPIRE DISTRIBUTION, INC.'S RESPONSES TO FOX'S FIRST SET OF INTERROGATORIES

EXHIBIT 5
72

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 81 of 176 Page ID


#:729

subject of fact and expert testimony and is highly dependent on documents solely in

the possession of Fox, including its total sales and revenue from Fox's "Empire"

program and musical properties, and which have been requested and have yet to be

produced in this case.

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Empire may also pursue a reasonable royalty measured on a percentage of

Fox's gross revenues from all goods and services associated with the EMPIRE

SERIES and/or EMPIRE SERIES MUSIC. Calculation of Fox's gross revenues will

be the subject of fact and expert testimony and is highly dependent on documents

solely in the possession of Fox, including its total sales and revenue from Fox's

10

"Empire" program and musical properties, and which have been requested and have

11

yet to be produced in this case.

12

Empire may further seek damages in the form of Empire's actual losses,

13

including, without limitation, lost profits, lost sales, or decline in sales. Empire is

14

investigating its actual damages claims, and such claims will be the subject of fact

15

and expert testimony.

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Empire reserves the right to supplement and amend the categories of

17

damages, if necessary, as Empire becomes aware of additional information and

18

facts in discovery.

19
20

INTERROGATORY NO. 6:

21

If YOU contend that the ALLEGED EMPIRE DISTRIBUTION MARKS

22

have suffered dilution by blurring as a result of the activities alleged in the

23

COUNTERCLAIM, STATE THE BASIS for that assertion.

24

RESPONSE TO INTERROGATORY NO. 6:

25

Empire specifically objects to this Interrogatory on the grounds that it

26

requests information which is at least in part uniquely in the possession, custody or

27

control of Fox or entities or persons other than Empire. Without limiting facts that

28

may be adduced by other means of discovery, including without limitation


- 10 EMPIRE DISTRIBUTION, INC.'S RESPONSES TO FOX'S FIRST SET OF INTERROGATORIES

EXHIBIT 5
73

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 82 of 176 Page ID


#:730

depositions of Fox and nonparties, Fox's unauthorized use of the Empire Marks has

caused dilution by blurring insofar as Fox's use of the Empire Marks has created

the real and heightened risk that the Empire Marks will lose their ability to serve as

a unique identifier of Empire's goods and services. Fox's unauthorized use has

lessened, and will continue to unjustly lessen the capacity of the Empire Marks to

identify and distinguish the Empire's goods and services in the marketplace that the

parties share - among consumers and creators of music.

Empire's Marks are famous and distinctive, and became famous and

distinctive well before Fox's admittedly recent use of the "Empire" mark. Empire

10

is a well-known and highly acclaimed company working extensively with high

11

profile musical artists. Empire's Marks are blurred by Fox's unauthorized use

12

insofar as Fox's "Empire" has begun to overshadow Empire itself and has forced

13

Empire on numerous occasions to clarify that it is not associated with the "Empire"

14

program. For example, Empire CEO Ghazi Shami has been asked to assist

15

recording artists in appearing on Fox's "Empire" program due to the mistaken

16

belief that the parties are associated with one another. Similarly, in pitching Empire

17

goods and services to potential artists, Empire employees have been required to

18

clarify that Empire is not associated with the "Empire" program. Season two of

19

Fox's "Empire" program debuted to an audience of over 20 million viewers, and

20

Fox has sold hundreds of thousands of units of the music associated with the

21

"Empire" program. Fox's extensive advertising and use of the "Empire" name in

22

association with its goods and services has overshadowed Empire's hard-earned

23

reputation and damaged Empire's brand insofar as Empire's Marks now struggle to

24

serve as unique identifiers for Empire products under the shadow of Fox's

25

unauthorized use.

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Empire reserves the right to supplement and amend this answer if and as

27

Empire becomes aware of additional information and facts of dilution by blurring in

28

discovery.
- 11 EMPIRE DISTRIBUTION, INC.'S RESPONSES TO FOX'S FIRST SET OF INTERROGATORIES

EXHIBIT 5
74

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 83 of 176 Page ID


#:731

tarnishment in discovery.

2
3

INTERROGATORY NO. 8:

STATE THE BASIS for YOUR allegation in paragraph 20 of the

COUNTERCLAIM that "[n]umerous consumers, artists, and Empire's business

partners have expressed confusion to Empire as to whether the fictional 'Empire'

program has any affiliation or business relationship with the real-life Empire,"

INCLUDING the identity of these consumers, artists, and business partners, and

how, when, and where such alleged confusion was expressed.

10

RESPONSE TO INTERROGATORY NO. 8:

11

Without limiting facts and instances of actual confusion that may be adduced

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12

by other means of discovery, including without limitation depositions of Fox and

13

nonparties, Fox's "Empire" has begun to overshadow Empire itself and has forced

14

Empire on numerous occasions to clarify that it is not associated with the "Empire"

15

program. Such instances forming the basis for the allegation in paragraph 20 of the

16

Counterclaim include at least each of the following:

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17

Following Fox's media campaign regarding this case, Mia Amor

18

contacted Ghazi Shami via text message stating that she "thought [Empire

19

Distribution] had some type of involvement" in Fox's "Empire" program.

20

In 2015, Robyn Kaufman (Realtor, Pacific Union) expressed to Ghazi

21

Shami that she believed Fox's "Empire" was associated with Empire

22

Distribution.

23

On February 4, 2015, Waleed Coyote sent a text message to Ghazi Shami

24

stating that he "was pitchin empire to a artist today and he seems to think

25

ur the same empire as the TV show??? Thas crazy bro I had to over

26

explain who you and the company is about."

27
28

On February 15, 2015, Twitter user@EmDubious posted "Watching


#EMPIRE wondering when @ghazi & @nima_digital are going to make
- 13 -

EMPIRE DISTRIBUTION, INC.'S RESPONSES TO FOX'S FIRST SET OF INTERROGATORIES

EXHIBIT 5
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Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 84 of 176 Page ID


#:732

their appearance" referring to Empire CEO, Ghazi Shami and Nima

Etminan.

Ghazi Shami via e-mail that when he watched Fox's "Empire" show

premiere, he "was waiting for [Empire Distribution/Ghazi Shami] to be

listed in the credits" and stated that the "long term damage to [the Empire]

brand is irreversible."

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In March of2015, Empire employee Ari Simon told Tiffany Simerman


that he worked in marketing at Empire Distribution, a record label

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On February 23, 2015, Ingrooves founder Robb McDaniels expressed to

10

specializing in hop hop and urban music. Ms. Simerman, recognizing the

11

name "Empire," responded that a show was being made about Empire on

12

Fox.

13

In March of 2015, Empire employee Nima Etminan posted an Instagram

14

picture and received a comment, "Please let me star in next season OF

15

The Empire."

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On March 22, 2015, Empire CEO, Ghazi Shami, posted a picture on

17

Instagram and received a comment "Please let me star in next season OF

18

The Empire."

19

On March 24, 2015 musical artist Shaggy posted Empire's logo on

20

Instagram and received the comment "#teamCookie" in reference to Fox's

21

"Empire" character, Cookie Lyon.

22

On June 15, 20th Century Fox's Twitter account, @20centuryfoxTV,

23

posted a promotional Tweet regarding artist interviews "to talk about their

24

music for@Empire." The @Empire Twitter handle is owned and

25

operated by Empire Distribution.

26

On June 19, 2015, Interscope Records National Director of Promotion,

27

Lester Pace, posted a photo to Facebook regarding "Empire Distribution"

28

and received a comment "Can I be Cookie?" in reference to Fox's


- 14 EMPIRE DISTRIBUTION, INC.'S RESPONSES TO FOX'S FIRST SET OF INTERROGATORIES

EXHIBIT 5
76

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 85 of 176 Page ID


#:733

1
2

"Empire" character, Cookie Lyon.


-

On June 27, 2015, Sonja Norwood (Entertainment Manager,

sbnrwd@aol.com) inquired with Ghazi Shami as to whether Mr. Shami

could get her client a role or audition with Fox's "Empire" program.

On September 21, 2015, Nima Etminan and Ghazi Shami received an

email from Adam Azhari (aazahari@apple.com) at Apple's music

department stating that there had been "a case of mistaken name

somewhere on [the Apple] team" and clarifying whether Empire was

"working with Empire (the TV show)."

10

On October 14, 2015, Fox's "Empire" program Twitter account

11

@EmpireFOX posted a Tweet mentioning @EMPIRE, the Twitter

12

account owned and operated by Empire Distribution, in reference to its

"'

13

own show.

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14

On October 14, 2015, @fox25news, a Fox affiliate station, posted a

15

Tweet mentioning @EMPIRE, the Twitter account owned and operated

16

by Empire Distribution, in reference to interviews with cast members

17

from Fox's "Empire" program.

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On November 12, 2015, Reece Robinson, via the Twitter handle

19

@TheFatLadShow, posted a Tweet associating@EMPIRE, the Twitter

20

account owned and operated by Empire Distribution, as the record label

21

of the @EmpireFOX television program, stating "Also just want to say

22

how much i love @EMPIRE and @EmpireFOX what a show and what a

23

label!"

24
25

Empire reserves the right to supplement this response, as discovery is


ongomg.

26
27

INTERROGATORY NO. 9:

28

IDENTIFY any other PERSON(S) in the entertainment industry,


- 15 EMPIRE DISTRIBUTION, INC.'S RESPONSES TO FOX'S FIRST SET OF INTERROGATORIES

EXHIBIT 5
77

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 86 of 176 Page ID


#:734

INCLUDING the music industry, that YOU were aware of prior to January 1, 2010

that used or was using a mark or designation consisting of or including the word

"Empire," or any variant of that word.

RESPONSE TO INTERROGATORY NO. 9:

Prior to January 1, 2010, Empire Distribution was aware of the 1995 movie

entitled "Empire Records," about a local record store in Delaware.

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INTERROGATORY NO. 10:

IDENTIFY any other PERSON(S) in the entertainment industry,

10

INCLUDING the music industry, that YOU are aware of who began using a mark

1I

or designation that consists of or includes the word "Empire," or any variant of that

12

word, since January 1, 2010 and any trademark enforcement or protection efforts

13

made by YOU or on YOUR behalf with respect to any such PERSON(S).

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RESPONSE TO INTERROGATORY NO. 10:

15

Through Empire's prosecution of various trademark applications, Empire

16

became aware of the following entities or individuals purporting to use marks or

17

designations consisting of or including the word "Empire" or variants thereof:

18

19

- DVD EMPIRE (Ravana, LLC);

20

- EMPIRE (Champion Audio Inc.);

21

- EMPIRE ENTERTAINMENT and Design (Empire Entertainment, Inc.);

22

AUDIO EMPIRE (Brunston, Roy);

and

23

- EMPIRE STORE (Ravana, LLC).

24

Empire Distribution also became aware of an "Empire Music Group" page

25

on Instagram.

26
27
28
- 16 EMPIRE DISTRIBUTION, INC.'S RESPONSES TO FOX'S FIRST SET OF INTERROGATORIES

EXHIBIT 5
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Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 87 of 176 Page ID


#:735

1R~NDE

Dated: November 23, 2015

2
3

SLLP

By:
~ (
Paul L. Gale
Peter N. Villar
John M. Bowler
Michael D. Hobbs
Lindsay Mitchell Renner

4
5
6

Attorneys for DefendantCounterclaimant Empire


Distribution Inc.

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23
24
25
26
27
28
- 17 EMPIRE DISTRIBUTION, INC.'S RESPONSES TO FOX'S FIRST SET OF INTERROGATORIES

EXHIBIT 5
79

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 88 of 176 Page ID


#:736

VERIFICATION

2
I am authorized to make this verification for and on behalf of Empire

3
4

Distribution, Inc., a party to this action. I have read the foregoing EMPIRE

DISTRIBUTION, INC.'S RESPONSES TO FOX'S FIRST SET OF

INTERROGATORIES. I am informed and believe, based on information made

available to me, that the matters stated therein are true and on that ground declare

under the penalty of perjury under the laws of the United States that the matters

stated are true and correct.


Executed this 23rd day of November, 2015, at San Franciscp

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CEO, Empire Distribution, Inc.

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15
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17
18
19
20
21
22
23
24
25
26
27
28
- 18 EMPIRE DISTRIBUTION, INC.'S RESPONSES TO FOX'S FIRST SET OF INTERROGATORIES

EXHIBIT 5
80

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 89 of 176 Page ID


#:737

EXHIBIT 6

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 90 of 176 Page ID


#:738

PAULL. GALE (SBN 065873)

PETER N:'VILLAR (SBN 204038)


peter.villar@troutmansanders.com
TROUTMANSANDERSLLP
5 Park Plaza, Suite 1400
Irvine,, California 92614-2545
Telepn~me: (949) 622-2700
Facsimile: (949) 769-2052

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paul~ale@troutmansanders.com

JOHN M. BOWLER (pro hac vice)


jo_hn.bowler@troutmansanders.com
MICHAEL D. HOBBS (pro hac vice)
michael.hobbs@troutmansanders.com
LINDSAY MITCHELL RENNER (pro hac vice)
linds~y.henner@troutman.sanders.com
TROUTMAN~ANDERSLLP

Bank of America Plaza


600 Peachtree Street NE, Suite 5200
Atlanta, Georgia 30308-2216

AttorneJJ.s for Defendant-Counterclaimant


Empire Distribution Inc.

13

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION
16
17
18
19
20

TWENTIETH CENTURY FOX


TELEVISION, a divisiqn of
TWENTIETH CENTURY FOX
FILM CORPORATION, a Delaware
com_pagy, and FOX
BROADCASTING COMPANY, a
Delaware corporation,

21
22
23
24

Hon. Percy Anderson


EMPIRE DISTRIBUTION, INC.'S

RESPONSES TO FOX'S SECOND SET


OF REQUESTS FOR ADMISSION

Plaintiffs,

v.
EMPIRE DISTRIBUTION, INC., a
California corporation,
Defendant.

25
26

Case No. 2:15-cv-02158-PA-FFM

AND RELATED COUNTERCLAIM

27
28
27587173vl

EMPIRE DISTRIBUTION, INC. 'S RESPONSES


TO FOX'S
SECOND SET OF REQUESTS FOR ADMISSION
EXHIBIT
6

81

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 91 of 176 Page ID


#:739

the ALLEGED EMPIRE DISTRIBUTION MARKS without it being part of the


phrase "Empire Recordings," "Empire Distribution," or appearing with a skyline

graphic, as shown in paragraph 16 of the COUNTERCLAIM.

RESPONSE TO REQUEST FOR ADMISSION NO. 8:

6
7
8
9

Denied.
REQUEST FOR ADMISSION NO. 9:
Admit that you are not aware of any PRODUCTS bearing the ALLEGED

10
11

EMPIRE DISTRIBUTION MARKS being offered, sold, distributed, or advertised

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on FOX's website.

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RESPONSE TO REQUEST FOR ADMISSION NO. 9:

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15
16
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Denied.
REQ{JEST FOR ADMISSION NO. 10:
Admit that no consumer has ever attempted to purchase EMPIRE

18
19
20
21

PRODUCTS from YOU.


RESPONSE TO REQUEST FOR ADMISSION NO. JO:
Empire has made reasonable inquiry into the subject matter of this Request

22
23
24
25

and the information it knows or can readily obtain is insufficient to enable it to


admit or deny.
REQUEST FOR ADMISSION NO. 11:

26
27
28

Admit that no consumer has ever attempted to return EMPIRE PRODUCTS


to YOU.
27587173vl

5-

EMPIRE DISTRIBUTION, INC. 'S RESPONSES


TO FOX'S
SECOND SET OF REQUESTS FOR ADMISSION
EXHIBIT
6

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#:740

1
2

RESPONSE TO REQUEST FOR ADMISSIQN N0.11:


Empire has made reasonable inquiry into the subject matter of this Request

3
4

and the information it knows or can readily obtain is insufficient to enable it to

admit or deny.

Dated:

TR~SA

December 2, 2015

7
8

E/

By:.
'-t- I
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Paul . Gal
Peter N. Vil r
John M. Bowler
Michael D. Hobbs
Lindsay Mitchell Renner

9
10
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A. ttorneys fo. r D.efendantCountercTaimant Empire


Distribution Inc.

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27587173vl

6-

EMPIRE DISTRIBUTION, INC. 'S RESPONSES TO FOX'S SECOND SET OF REQUESTS FOR ADMISSION

EXHIBIT 6
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#:741

EXHIBIT 7

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 94 of 176 Page ID


#:742

EXPERT REPORT OF TED COHEN


STATEMENT OF QUALIFICATIONS
I have been immersed in music since my early teens, first managing bands and
promoting shows in high school, and then, while at university, working at the Ithaca
College radio station and music venues in Ithaca.
I entered the music industry professionally in 1970 as the co-buyer for Disc
Records, a 34-store national music retail chain based in Cleveland, Ohio. Subsequently, I
was hired as a regional record promotion representative for Columbia Records in 1971
and then joined Warner Bros. Records in 1972. For well over a decade, I worked in
Artist Development for Warner Bros. Records with artists such as Alice Cooper, The
Doobie Brothers, Fleetwood Mac, The Who, Van Halen, Prince, Talking Heads, Robert
Palmer, The Sex Pistols, Pretenders, The Funkadelic, Roxy Music, Elton John and
George Benson.
In 1982, I joined an innovative new media work group launched by Warner
Communications senior management. This cross-division think tank between Warner
Music Group and video game/computer sister company Atari explored and gauged the
impending synergy and impact of personal computers, the compact disc, CD-ROMs and
the Internet on music consumers. Following that, I then held senior management
positions at Westwood One Radio Networks, the artist management company Gallin, Jim
Morey & Associates, Cypress Records and Philips Media.
At Philips, I focused on developing and producing interactive music projects for
their proprietary CD-ROM platform, CD-Interactive. I then served as Executive Vice
President of Digital Music Network Inc. where, in 1998, I co-founded and served as
Chairman of the Los Angeles-based annual Webnoize digital music conferences, going
on to formulate and chair the influential MidemNet conference in Cannes two years later,
which I curated and hosted for twelve years. I also formed and led two successful new
media consulting firmsDMN Consulting and Consulting Adultsattracting major
clients such as Amazon.com, Microsoft, Universal Studios, Napster, DreamWorks
Records, the RIAA, Liquid Audio, Wherehouse Records/Checkout.com along with
various other entertainment, technology and new media organizations.
From 2000 to 2006, I worked as EMI Musics Senior Vice President of Digital
Development, creating and implementing the companys worldwide digital strategy. I
led licensing negotiations with Apple/iTunes, Microsoft, RealNetworks, Rhapsody,
MTV, BET, Virgin Mobile, Motorola, Nokia, Verizon, and others. During that time, I

CONFIDENTIAL

EXHIBIT 7
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#:743

represented EMI at global digital music conferences and industry symposiums such as
Plug-In, DLD, Digital Hollywood, CES, CISAC and others.
I am currently the managing partner of TAG Strategic, a digital entertainment
consulting firm which I founded in 2006. TAG Strategic specializes in negotiating and
expediting agreements for digital rights with entertainment media rights-holders. TAG
Strategics clients have included Gibson Guitar Corp., Muze, EMI Music, Limewire,
Participant Media, Coca-Cola, Amazon, Verizon Communications, SanDisk, Hello
Music, UK Trade & Investment, Buymyplaylist.com, Emblaze Mobile and Rosenzweig
& Company, among others.
I am currently acknowledged as one of the pre-eminent experts in the myriad
issues surrounding the digital entertainment ecosystem and have been engaged by artists,
music labels, and music publishers to provide expert opinion and/or testimony. I have
extensive knowledge and experience regarding the music industry and how it has been
transformed in the digital age. I have both witnessed and actively participated in
transition of the music industry from its physical beginnings to its current digital status.
SUMMARY OF CONCLUSIONS
1.

Whether buying physical albums or digital music, consumers typically do not shop
by record label. Music sales are generally driven by the strength of the artist
and/or the strength of the song. The record label associated with a given song,
album, or artist is rarely relevant to the typical consumers purchasing decisions.

2.

Empire: Original Soundtrack from Season 1 is a soundtrack and marketed as


such. The singles released from the show are similarly soundtrack music and so
marketed. The fact that the soundtrack album and singles may also appear for sale
under music by genre does not change this fact.

3.

Purchasers of soundtrack music are overwhelmingly fans of the underlying


television show or movie and buy the album based on their affiliation with that
television show or movie.

4.

Empire Distribution, Inc. is not a well-known record label.

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#:744

ASSIGNMENT
I was retained by Twentieth Century Fox Television and Fox Broadcasting
Company (Fox), as an expert on the music industry, including music consumers
purchasing habits. I am being paid $30,000.00 for my work on this matter. My
compensation is not contingent upon the outcome of this investigation or the case.
My findings at this point are based on the information available to me. I may
revise or supplement my opinions based on additional discovery and analyses. This
report addresses issues on which Fox is affirmatively offering an expert opinion. I
reserve the right to address additional issues, including those raised in any expert reports
submitted by Empire Distribution, at the appropriate time under the governing expert
discovery rules.
DOCUMENTS/MATERIALS AND PRIOR TESTIMONY
In connection with this matter, in addition to the general knowledge I have gained
on the music industry throughout my career and the information contained in this report, I
have considered documents produced along with this report, the complaint and
counterclaims filed in this action, the physical copy of Empire: Original Soundtrack from
Season 1, various searches on Amazon, Spotify, Tidal, Pandora, and Wikipedia, and
conversations with Maureen Crowe and Brian Felsen (Former CEO of CD Baby).
In the last four years, I have given deposition testimony in one case: Toto, Inc. v.
Sony Music Entertainment, Case No. 12 Civ. 1434 (S.D.N.Y.).
DISCUSSION
OPINION #1
1.
Whether buying physical albums or digital music, consumers typically do
not shop by record label. Music sales are generally driven by the strength of the artist
and/or the strength of the song. The record label associated with a given song, album, or
artist is rarely relevant to the typical consumers purchasing decisions.
Consumers typically do not shop by record label. Rather, in the music industry, it
is generally recognized that artists and songs drive music sales. In fact, consumers are
typically not even aware of the record label associated with any given song, artist, or
album. This is even more true with digital music.
With the demise of the traditional record store, such as Tower Records and Sam
Goodys, mass-market retailers have continually reduced the amount of square footage

CONFIDENTIAL

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#:745

dedicated to recorded music. Their music-focused advertising and marketing efforts are
limited to superstar campaigns, such as Targets current television ad campaign for the
new release of Adele, arguably the biggest artist in the world. These campaigns are
focused on the artist, the album, and the retailer, not the record label. In Targets Adele
TV spot, for example, there is no mention or visual identification of her label, XL, their
distribution partner, Beggars Group, or Sony Music, their global distributor. Target is the
only brand affiliation.
The organization of stores currently selling physical albums reflects that
consumers buying physical albums shop for their music by artist or by genre. Music
stores typically organize albums by artist, sometimes by artist within music genre. The
infrequent instances of label-driven purchases are generally confined to highly
sophisticated consumers and a few iconic brands such as Deutsche Grammophon
(classical music) and Blue Note (jazz music) that have been able to maintain their identity
despite the waning significance of record labels.
In the now-dominant digital marketplace, record labels are even less of a driver of
purchasing decisions. Consumers search for songs they like based on artist or song, not
record label. For example, there is not a sort by record label feature in iTunes, the
world-leader in music download sales. As another example, I worked with Amazon on
the design of their music store; Amazon does not organize music by record label. With
online platforms like these, searches for a record label result in large numbers of hits
unrelated to the record label in question, which, again, shows that consumers are not
using these platforms in this manner.
On streaming services such as Spotify, the presentation is totally song and/or
artist-centric, with record labels visibility generally relegated to a copyright notice. In
fact, due to the absence of liner notes, etc. on download and streaming sites, a consumer
may not even be able to identify all record labels associated with an album or song when
purchasing music digitally and must actively look for record label information, with such
information generally appearing only after scrolling several screens down when
viewing information about a song or an album. Digital sales thus diminish the
importance of, and knowledge of, a record label or distributor for the typical consumer.
Nor are consumers discovering new music by record label. They discover new
music through radio, friends, television, movies and playlists on services such as Spotify,
Tidal and Apple Music. When a song the consumer likes is featured on a radio station,
television show, movie, or playlist, the consumer may search for and purchase that song
or other songs by that same artist. The consumer does not know what record label is

CONFIDENTIAL

EXHIBIT 7
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#:746

affiliated with that song or artist, much less actively search for and purchase music by
record label.
OPINION #2
2.

The music that Empire Distribution claims is infringing is soundtrack music from
the television show Empire.

Empire: Original Soundtrack from Season 1 is a soundtrack and marketed as


such. In fact, Empire: Original Soundtrack from Season 1 was nominated for a 2015
American Music Award in the Favorite Soundtrack category. The singles released
from the show are similarly soundtrack music and so marketed. The fact that the
soundtrack album and singles may also appear for sale in certain platforms under music
by genre does not change this fact.
OPINION #3
3.

Purchasers of soundtrack music generally are fans of the underlying television


show or movie and buy the album based on the affiliation with that television
show or movie.

To the extent consumers purchase a soundtrack album, they are generally fans of
the underlying work (television show or movie) and want the music that they have heard
while watching the underlying work. Put differently, the consumers of soundtrack music
buy the soundtrack based on its affiliation with the show or movie. This is especially true
in the digital age. Before the digital age, consumers would purchase entire albums to get
access to the one or two songs they wanted to listen to. The iTunes platform effectively
deconstructed albums as products into their constituent songs. Consumers now can
purchase single tracks without the need to purchase entire albums to listen to the one or
two songs on the album they know they like. Given this option, those consumers still
purchasing entire soundtrack albums generally have a tie to the underlying work.
OPINION #4
4.

Empire Distribution, Inc. is not a well-known record label.

I have worked in the music industry for over forty years, including for several
different record labels. I was not aware of Empire Distribution, Inc. or Empire
Recordings, Inc. prior to my work on this case.
Neilsen SoundScan, the sales source for the Billboard music charts and an
authoritative sales tracking system in the music industry, does not attribute any album

CONFIDENTIAL

EXHIBIT 7
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#:747

sales to Empire Distribution, Inc. or Empire Recordings, Inc. While SoundScan does list
album sales of approximately 29,400 units for Sage the Geminis Remember Me album,
which Empire Distribution claims to have had a role in selling, SoundScan does not
attribute any of these sales to Empire Distribution, Inc. or Empire Recording, Inc. By
comparison, SoundScan attributes over 56,540,000 album sales to Sony for the year 2014
alone. Empire Distributions own Facebook page admits that it did not sell any physical
albums until 2013.
Empire Distributions presence on Spotify, the worlds largest streaming service
with 70 million users, further highlights the weakness of Empire Distributions brand. In
the Urban/Rap/Hip-Hop genres, Def Jam is acknowledged to be the historic/iconic brand.
They currently have 201,051 followers on their label page on Spotify (0.29% of all
Spotify users), while following 42 of their fans.1 Empire Distribution, by contrast, has
2,002 followers on their label page on Spotify (0.0029% of all Spotify users), while they
follow 2,577. This ratio of followers to following, combined with the extremely low
percentage of Spotify users following Empire Distribution, would be viewed as a failure
from a social marketing perspective in the music industry.
I would not consider Empire Distribution to be a well-established, wellrecognized, or famous record label.
Dated: November 30, 2015

Ted Cohen

In comparison, Adele has approximately 25 million followers. Thus Def Jams approximately
200,000 followers further evidences my earlier statements about the role and importance of a
record label as compared to an artist.

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#:748

EXHIBIT 8

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 101 of 176 Page ID
#:749

Empire
Television Series
Report
November 2015

FIELD
RESEARCH
CORPORATION
EXHIBIT 8
90

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#:750

Table of Contents
I.

Introduction and Summary

II.

Credentials

III.

Findings

IV. Conclusions
Appendix A Deposition and Trial Testimony During the Past Four
Years
Appendix B Resume and Publications and Presentations Since 2005
Appendix C Documents Considered
Appendix D Questionnaire (Sample Web Screenshots)
Appendix E Field Survey Methods
Appendix F Background Information on the YouGov Online Panel
Appendix G Background Information on the SSI Online Panel
Appendix H Name of the Television Series Promoted in the Videos
Appendix I

Who Created, Produced or Put Out the Television Series


Promoted in the Videos

Appendix J

What Else Is Created, Produced or Put Out by the


Companies That Put Out the Television Series

Appendix K What Companies Gave Their Authorization or Approval


for the Television Series to Be Created, Produced or Put
Out
Appendix L With What Companies There is A Business Affiliation
or Business Connection
Appendix M Underlying Data Tables (Unweighted)
Appendix N Weighted Data Tables

i
EXHIBIT
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#:751

Report of E. Deborah Jay, Ph.D.


I.

Introduction and Summary


I am President and Chief Executive Officer of Field Research Corporation ("Field

Research"), a San Francisco-based research firm specializing in marketing and public opinion
surveys. Field Research was retained on behalf of Twentieth Century Fox Television, a division
of Twentieth Century Fox Film, and Fox Broadcasting Company ("Fox") to conduct a
likelihood-of-confusion survey (the "Field Survey") with a nationwide representative sample of
adults age 18 to 64 who are potential viewers of Fox's television series with the name "Empire"
(hereafter "the Empire television series").1,2 The purpose of the Field Survey was to determine
whether potential viewers of the Empire television series are likely to mistakenly believe that
"Empire Distribution" (or "Empire Recordings") is the source, the sponsor of, or affiliated with
the Empire television series.

A.

Summary of Methodology

Under Field Research's design, direction and supervision, YouGov, a full-service market
research firm, administered the Field Survey. The Field Survey was conducted online between
October 12 and October 17, 2015 with two nationwide representative samples of adults: (i) a
nationwide representative sample of adults age 18 to 64 in the U.S. (the general population
sample) and (ii) a nationwide representative sample of Black/African-American adults age 18 to
64 in the U.S. (the Black/African-American oversample). Approximately one-third of the adults

Field Research is performing this study on a time and materials basis. Because work in connection with this project
is ongoing, I do not yet know the total project costs. The hourly rate that Field Research is charging for my time on
this project in 2015 is $650. Field Research's compensation is not dependent on the outcome of this dispute.
Adults age 18 to 64 were interviewed because I understand that adults in this age group represent the majority
(88%) of the Empire broadcast and video on demand audience age 18 and older. I also understand that adults age
18 and older represent the majority of the Fox.com and Hulu audience for Empire.
1
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who were screened for eligibility were in the general population sample, and two-thirds were in
the Black/African-American oversample. Black/African-American adults were intentionally
oversampled because I understand that they represent the majority of the Empire broadcast and
video on demand audience.
The adults who were screened for eligibility and interviewed for the Field Survey were
randomly selected from two online panels: (i) the online panel maintained by YouGov, and (ii)
the online panel maintained by Survey Sampling International (SSI), another full-service market
research agency.3 The YouGov panel includes approximately 1.6 million adults in the U.S., and
the SSI panel includes approximately 5 million adults in the U.S. The general population sample
was randomly selected from YouGov's online panel, and the Black/African-American
oversample was randomly selected from both the YouGov and the SSI online panels.4 Each adult
who was randomly selected and invited to participate in the Field Survey was provided with a
unique link to the survey, so that no person could participate in the survey more than once.
To be eligible for the Field Survey, adults age 18 to 64 had to indicate that they would
watch a dramatic television series in the next three months. They also had to indicate that they
would watch a television show on the Fox network during the next three months.5,6 In all, 1,200
randomly-selected adults (400 in the general population sample and 800 in the Black/AfricanAmerican oversample) were screened to determine whether they were eligible for the Field
Survey. Of the 1,200 adults who were screened for eligibility, 568 adults (47%) qualified for the

3
4
5

Background information on the YouGov and SSI online panels are in Appendix F and Appendix G, respectively.
The IP address and other information in the panel databases (such as, the respondent's mailing address) were
checked to ensure that the samples for the Field Survey did not include duplicate respondents.
Survey respondents were not asked what networks they would watch until the end of the Field Survey. Neither
"Fox" nor the name of any other company was mentioned in the Field Survey until after survey respondents
answered the likelihood-of-confusion questions.
Adults also could not work or live in a household in which someone worked in the music industry, the television
industry, or the advertising or marketing research industry because these individuals might have special
knowledge.
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Field Survey (139 adults in the general population sample and 429 in the Black/AfricanAmerican oversample).
Consistent with the viewership of the Empire television series, the majority of adults who
qualified for the Field Survey ("Field Survey respondents") were Black/African-American (76%)
and female (57%). About one-third of the Field Survey respondents was in each of the following
age groups: 18 to 34, 35 to 49 and 50 to 64.
Field Survey respondents were shown two trailers for the Empire television series. The
first trailer was for the January 7, 2015 series premiere, and the second trailer was for the
September 23, 2015 season premiere. After survey respondents confirmed that they were able to
see and hear the two trailers, they were asked the name of the television series promoted in the
trailers.
The Field Survey then asked four sets of questions to measure the potential for confusion
as to the source, the sponsor of, and affiliation of the Empire television series. The first set of
questions measured the potential for "source confusion." Survey respondents were asked who or
what company they thought created, produced or put out the television series promoted in the
videos. The second set of questions assessed the potential for "anonymous source confusion."
Survey respondents were asked whether they thought the companies that created, produced, or
put out the television series also created, produced, or put out something else, and if so, what else
they created, produced, or put out. The third set of questions gauged the potential for
"sponsorship confusion." Survey respondents were asked whether the television series promoted
in the videos was created, produced or put out with the authorization or approval of another
company. Survey respondents who answered this question in the affirmative were asked what
other companies gave their authorization or approval for the television series to be created,
produced or put out, and what else, if anything, the companies that authorized or approved the

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television series created, produced, or put out. The fourth set of questions evaluated the potential
for "affiliation confusion." Survey respondents were asked whether the companies that created,
produced or put out the television series promoted in the videos have a business affiliation or
business connection with another company. Survey respondents who answered this question in
the affirmative were asked with what other companies there is a business affiliation or business
connection, and what else, if anything, the companies affiliated with the television series created,
produced or put out. Field Survey respondents also were asked the reasons for their answers to
the four sets of "likelihood-of-confusion" questions.
Before any questions were asked about the Empire television series, the Field Survey
instructed respondents to answer all questions on their own, without asking anybody else for help
or referring to reference materials or the Internet. The questionnaire also informed survey
respondents that we were only interested in their opinions and beliefs, and instructed survey
respondents to indicate if they did not know the answer to a question or did not have an opinion
or belief.
The Field Survey was double-blind (neither the persons responsible for administering the
survey nor the survey respondents were told the names of the sponsors of the survey or that the
survey was being conducted in connection with a trademark dispute). The Field Survey was
performed according to accepted survey standards and in conformity with the guidelines
discussed in the Federal Manual for Complex Litigation, 4th Ed. 11.493 (2004).7

The survey population was properly defined as persons who are potential viewers of the Empire television series,
and the sample selected was representative of that population. The questions asked in the Field Survey are clear
and not leading, and the data gathered for the Field Survey were properly analyzed and accurately recorded. The
Field Survey was conducted, under my direction, by survey research professionals following proper survey
procedures, and the entire process was conducted so as to ensure objectivity.
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B.

Summary of Findings

As described in more detail in this report, the Field Survey found:

Almost all (98%) of the Field Survey respondents said the name of the television
series promoted in the videos was "Empire."

None of the Field Survey respondents said that "Empire Distribution" or "Empire
Recordings" was the source, the sponsor of, or affiliated with the Empire television
series. Nor did any Field Survey respondent give an answer that could be reasonably
construed as referring to "Empire Distribution" or "Empire Recordings."8,9

Based on the overall design and execution of the Field Survey, it provides representative
and reliable information regarding potential viewers of the Empire television series. In my
opinion, the Field Survey strongly supports the conclusion that potential viewers of the Empire
television series are not likely to mistakenly believe that Empire Distribution (or Empire
Recordings) is the source, the sponsor of, or affiliated with the Empire television series (i.e.,
there is not a likelihood of confusion).
The findings of the Field Survey and my conclusions are described in more detail in the
remainder of this report, which is based on information that I have been provided and analyses
that I have performed thus far.10 I understand that I may be provided with additional information
or asked to perform further analyses. If so, this report may be amended or revised.

Two survey respondents (less than 1% of the survey respondents) said a company with the name "Empire" was the
source, the sponsor of, or affiliated with the Empire television series. However, when asked what else the source,
the sponsors or the companies affiliated with the television series created, produced or put out, neither of these
survey respondents said "music," and therefore, these survey respondents could not have been referring to "Empire
Distribution" or "Empire Recordings." Sixteen survey respondents (3% of the survey respondents) said that an
unnamed music company or entity that puts out music was the source, the sponsor of, or affiliated with the Empire
television series. However, none of these survey respondents gave the name of the Empire television series as a
reason for their answers, and therefore, there is no basis for concluding that these respondents were referring to
"Empire Distribution" or "Empire Recordings" either.
9 If an appreciable number of Field Survey respondents mistakenly believed that that "Empire Distribution" or
"Empire Recordings" was the source, the sponsor of, or affiliated with the Empire television series, Field Research
would have conducted a second set of interviews concerning another stimulus with a control group to determine
whether these respondents' answers were due to legally irrelevant factors, such as guessing. However, because
none of the Field Survey respondents mistakenly believed that "Empire Distribution" or "Empire Recordings" was
the source, the sponsor of, or affiliated with the Empire television series, a control group was unnecessary.
10 Screenshots showing how the questionnaire appeared on the computer are in Appendix D. A detailed description
of the methods used to conduct the Field Survey is in Appendix E.
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II.

Credentials
I am President and CEO of Field Research Corporation, one of the oldest and most

respected marketing and public opinion research firms in the United States.11 I have more than
40 years of experience conducting large-scale surveys of all types (e.g., mail, Internet, telephone
and in-person), including surveys for public agencies, nonprofit organizations, private companies
and law firms.
During my career I have designed and directed well over 700 surveys and more than 300
surveys in intellectual property disputes. I have testified on behalf of plaintiffs and defendants in
state and federal courts and other tribunals (such as, the U.S. Patent and Trademark Office and
the U.S. International Trade Commission) in numerous cases, and routinely have been qualified
by courts as an expert in survey methodology.12 I also have lectured on litigation surveys and
survey methods before bar associations, trade associations, and business and law schools and
been on the faculties of numerous continuing legal education programs.
I am past chair of the Council of American Survey Research Organizations (CASRO), a
not-for-profit trade association representing over 300 survey research companies engaged in
professional research, and I chaired the Standards Committee for the American Association for
Public Opinion Research, a professional society of over 2,000 individuals engaged in opinion
research, market research, and social research. I have served on the editorial board of several
journals, and my publications include articles in the Trademark Reporter, the Encyclopedia of

11 Founded in 1945 by Mervin Field, Field Research currently conducts thousands of interviews each year with
representative samples of the public, consumers, employees, corporate executives, and other populations. Field
Research has conducted the nationally-quoted Field Poll since 1947, and has tracked voter preferences in all major
statewide elections in California since 1948. Since 1948, the average deviation between The Field Poll's final preelection poll in California and the actual percentage vote in California for the winning candidate in elections for
President, Governor and U.S. Senate has been approximately two percentage points. The Field Poll is well-known
throughout California for the surveys it regularly takes and publishes on issues of public importance.
12 Appendix A includes a list of cases in which I have testified in deposition and/or at trial during the past four years.
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Survey Research Methods, Polling America: An Encyclopedia of Public Opinion, and


Trademark and Deceptive Advertising Surveys: Law, Science and Design.13
I hold a bachelor's degree in psychology and political science from the University of
California at Los Angeles (magna cum laude) and a master's degree and doctorate in political
science from the University of California at Berkeley. Before joining Field Research in 1991, I
was a program director at SRI International (formerly Stanford Research Institute). I also was a
manager with KPMG Peat Marwick in San Francisco, and a research associate at the Survey
Research Center at the University of California at Berkeley.

III.

Findings
This section describes the findings from the Field Survey. The verbatim responses to the

open-ended questions in the Field Survey are in Appendices H through L, and the underlying
data tables for the analyses in this report are in Appendix M.

A.

Name of the Television Series Promoted in the Videos

After survey respondents were shown the trailers for the Empire television series, the
Field Survey asked the following question: "What is the name of the television series promoted
in the videos you just watched?" Table 1 summarizes the responses to this question.14 As shown
in Table 1, 98% of the survey respondents said that the name of the television series promoted in
the videos was Empire.

13 Appendix B includes my resume and a list of publications and presentations I have authored (or coauthored)
during the past 10 years. Appendix C provides a list of documents and other information I considered in forming
my opinions.
14 Survey respondents' verbatim responses to this question are in Appendix H.
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Table 1
Name of the Television Series Promoted in the Videos*
Survey
Respondents
(n = 568)
Empire

98%

Fox

<1

Other

<1

Don't know

* Based on Question C1.

B.

Source of the Empire Television Series

The Field Survey then asked the following question: "Who or what company do you
think created, produced or put out the television series promoted in the videos?" Table 2
summarizes the responses to this question.15 As shown in Table 2, none of the Field Survey
respondents said "Empire Distribution" or "Empire Recordings" created, produced or put out the
television series promoted in the videos. Less than 1% of the survey respondents said a company
with the name "Empire" or an unnamed music company or entity that puts out music was the
source of the Empire television series.

15 Survey respondents' verbatim responses to this question and the reasons they gave for their answers are in
Appendix I.
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Table 2
Who or What Company Created, Produced, or Put Out
the Television Series Promoted in the Videos*
Survey
Respondents
(n = 568)
Empire Distribution or Empire Recordings

0%

Empire (nonspecific)

<1

Unnamed music company or entity that puts out music

<1

Fox (or a Fox affiliate)

61

Someone associated with the show (e.g., Timbaland, Danny Strong, Lee Daniels,
Terrence Howard) or the show's crew or producers (nonspecific)

Misc. television networks/companies (e.g., ABC, NBC, Netflix)

Television or movie producers/someone in the television industry

<1

Misc. other responses

Don't know/No answer

28

* Based on Question D1. Note, the percentages add to more than 100% because some survey respondents
gave more than one answer in response to Question D1.

C.

What Else Is Created, Produced or Put Out by the Companies


that Put Out the Empire Television Series

Field Survey respondents were asked whether the companies that created, produced or
put out the television series also create, produce, or put out something else, and if so, what else
they create, produce or put out. Table 3 summarizes the responses to this question.16 As shown in
Table 3, the most frequent response to this question was other television shows (32% of the
survey respondents said this).

16 Survey respondents' verbatim responses to this question and the reasons they gave for their answers are in
Appendix J.
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Table 3
What Else Is Created, Produced or Put Out by the Companies
that Put Out the Empire Television Series*
Survey
Respondents
(n = 568)
Music or music videos

4%

Empire (nonspecific)

<1

Misc. television shows

32

Misc. movies

11
th

The Fox channel or 20 Century Fox

<1

Misc. other responses

Don't know/No answer

28

Not applicable Did not say that something else is created, produced or put out by
the companies that put out the Empire television series

28

* Based on Question E2. Note, percentages add to more than 100% because some survey respondents gave
more than one answer in response to Question E2.

Approximately 4% of the survey respondents said the companies that created, produced,
or put out the Empire television series also create, produce or put out music. Table 4 provides a
breakdown of the survey respondents who said the source of the Empire television series also
creates, produces or puts out music. As shown in Table 4, 2% of the survey respondents did not
know the source of the Empire television series, but said the source of the series puts out music,
and 2% of the survey respondents said the source of the Empire television series was Fox, Lee
Daniels or Timbaland and that they also put out music.
Table 4
Breakdown of the Respondents Who Said the Source of the
Empire Television Series Also Creates, Produces or Puts Out Music*
Survey
Respondents
(n = 568)
Did not know the source of the television series, but said the source puts out
music

2%

Said the source of the television series was Fox, Lee Daniels, or Timbaland and
that they also put out music

Did not say the source of the television series puts out music
* Based on Question D1 and E2.

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Table 5 provides a breakdown of the survey respondents who said the source of the
Empire television series was a company with the name "Empire." As shown in Table 5, none of
the survey respondents said a company with the name "Empire" was the source of the Empire
television series and that this company also puts out music.
Table 5
Breakdown of the Respondents Who Said the Source of the
Empire Television Series Was a Company with the Name "Empire"*
Survey
Respondents
(n = 568)
Said the source of the television series was "Empire," and that this company also
puts out music

0%

Said the source of the television series was "Empire," but did not say that this
company also puts out music

<1

Did not say the source of the television series was Empire

99

* Based on Question D1 and E2.

D.

Sponsors of the Empire Television Series

Field Survey respondents were asked whether the television series promoted in the videos
was created, produced or put out with the authorization or approval of another company, and if
so, what companies gave their authorization or approval for the television series to be created,
produced or put out. Table 6 summarizes the responses to this question.17 As shown in Table 6,
none of the survey respondents said "Empire Distribution" or "Empire Recordings" gave its
authorization or approval for the Empire television series to be created, produced or put out. Less
than 1% of survey respondents said a company with the name "Empire" or an unnamed music
company or entity that puts out music gave its authorization or approval for the Empire
television series to be put out.

17 Survey respondents' verbatim responses to this question and the reasons they gave for their answers are in
Appendix K.
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Table 6
What Companies Gave Their Authorization or Approval
For the Empire Television Series to Be Created, Produced or Put Out*
Survey
Respondents
(n = 568)
Empire Distribution or Empire Recordings

0%

Empire (nonspecific)

<1

Unnamed music company or entity that puts out music

<1

Fox (or a Fox affiliate)

Someone associated with the show (e.g., Timbaland, Danny Strong, Lee Daniels,
Terrence Howard) or the show's crew or producers (nonspecific)

Misc. television networks/companies (e.g., ABC, NBC, Netflix)

Television or movie producers/someone in the television industry

Misc. record companies (e.g., Motown, Shazam)

<1

Misc. other responses

Don't know/No answer

35

Not applicable Did not say that the television series was created, produced or
put out with the authorization or approval of another company.

51

* Based on Question F2. Note, the percentages add to more than 100% because some survey respondents gave
more than one answer in response to Question F2.

Field Survey respondents were asked what else, if anything, is created, produced or put
out by the companies that gave their authorization or approval for the television series in the
videos. Table 7 summarizes the responses to this question.18 As shown in Table 7, less than 1%
of the survey respondents said the companies that gave their authorization or approval for the
Empire television series also create, produce, or put out music.19

18 Survey respondents' verbatim responses to this question are in Appendix K.


19 Of the four survey respondents who said the sponsor of the television series also puts out music, two said the
sponsor was an unnamed music company or entity that puts out music, and two said the sponsor was Fox or Lee
Daniels and that Fox or Lee Daniels also puts out music.
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Table 7
What Else Is Created, Produced or Put Out by the Companies
That Gave Their Authorization or Approval for the Empire Television Series*
Survey
Respondents
(n = 568)
Music or music videos

<1%

Empire (nonspecific)

<1

Misc. television shows

Misc. movies

2
th

Fox channel or 20 Century Fox

<1

Misc. other responses

Nothing

<1

Don't know/No answer

Not applicable Did not know who gave their authorization or approval for the
Empire television series to be put out

35

Not applicable Did not say that the television series was created, produced or
put out with the authorization or approval of another company

51

* Based on Question F4. Note, percentages add to more than 100% because some survey respondents gave
more than one answer in response to Question F4.

E.

Affiliation of the Empire Television Series

Survey respondents were asked whether the companies that created, produced or put out
the television series promoted in the videos have a business affiliation or business connection
with another company, and if so, with what other companies there is a business affiliation or
business connection. Table 8 summarizes the responses to this question.20 As shown in Table 8,
none of the survey respondents said "Empire Distribution" or "Empire Recordings" has a
business affiliation or business connection with the companies that put out the Empire television
series. Less than 1% of the survey respondents said "Empire" or an unnamed music company or
entity that puts out music has a business affiliation or business connection with the Empire
television series.

20 Survey respondents' verbatim responses to this question and the reasons they gave for their answers are in
Appendix L.
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Table 8
What Companies Have a Business Affiliation or Business Connection
with the Companies that Put Out the Empire Television Series*
Survey
Respondents
(n = 568)
Empire Distribution or Empire Recordings

0%

Empire (nonspecific)

<1

Unnamed music company or entity that puts out music

<1

Fox (or a Fox affiliate)

Someone associated with the show (e.g., Timbaland, Danny Strong, Lee Daniels)
or the show's crew or producers (nonspecific)

<1

Misc. television networks/companies (e.g., ABC, NBC, Netflix)

Television or movie producers/someone in the television industry

Misc. record companies (e.g., Motown, Shazam)

<1

Misc. other responses

Don't know/No answer

30

Not applicable Did not say that the companies that put out the television series
have a business affiliation or business connection with another company.

59

* Based on Question G2. Note, the percentages add to more than 100% because some survey respondents
gave more than one answer in response to Question G2.

Field Survey respondents were asked what else, if anything, is created, produced or put
out by the companies that have a business affiliation or business connection with the television
series promoted in the videos. Table 9 summarizes the responses to this question.21 As shown in
Table 9, less than 1% of the survey respondents said the companies that have a business
affiliation or business connection with the Empire television series also create, produce, or put
out music.22

21 Survey respondents' verbatim responses to this question are in Appendix L.


22 Of the two survey respondents who said that the companies affiliated with the Empire television series also put out
music, one survey respondent said an unnamed music company or entity that puts out music was affiliated with the
television series, and the other said Timbaland was affiliated with the television series and that Timbaland also
puts out music.
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Table 9
What Else Is Created, Produced or Put Out by the Companies that Have a
Business Affiliation or Business Connection with the Empire Television Series*
Survey
Respondents
(n = 568)
Music or music videos

<1%

Empire (nonspecific)

<1

Misc. television shows

Misc. movies

Misc. other responses

Nothing

<1

Don't know/No answer

Not applicable Did not know with what other companies there was a business
affiliation or business connection

30

Not applicable Did not say that the companies that put out the television series
have a business affiliation or business connection with another company

59

* Based on Question F4. Note, percentages add to more than 100% because some survey respondents gave
more than one answer in response to Question F4.

F.

Overall Findings

Table 10 summarizes the responses to the four sets of questions in the Field Survey
regarding the source, the sponsor of, and affiliation of the Empire television series. As shown in
Table 10, none of the Field Survey respondents said that "Empire Distribution" or "Empire
Recordings" was the source, the sponsor of, or affiliated with the Empire television series.
Table 10
Summary of Responses to the Four Sets of Questions Regarding the
Source, the Sponsor of, and Affiliation of the Empire Television Series*
Survey
Respondents
(n = 568)
Said "Empire Distribution" or "Empire Recordings" was the source, the sponsor of,
or affiliated with the television series

0%

Said "Empire" (nonspecific) or an unnamed music company or entity that puts out
music was the source, the sponsor of, or affiliated with the television series

Did not say "Empire Distribution," "Empire Recordings," "Empire" or an unnamed


music company or entity that that puts out music was the source, the sponsor of,
or affiliated with the television series

97

* Based on Questions D1- G4.

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Approximately 3% of the Field Survey respondents said a company with the name
"Empire" or an unnamed music company or entity that puts out music was the source, the
sponsor of, or affiliated with the Empire television series. Table 11 shows the verbatim responses
for these survey respondents. As shown in Table 11, two survey respondents (less than 1% of the
survey respondents) said a company with the name "Empire" was the source, the sponsor of, or
affiliated with the Empire television series. However, when asked what else the source, the
sponsors, or companies affiliated with the television series created, produced or put out, neither
of these survey respondents said "music," and therefore, these survey respondents could not have
been referring to "Empire Distribution" or "Empire Recordings." Sixteen survey respondents
(3% of the survey respondents) said that an unnamed music company or entity that puts out
music was the source, the sponsor of, or affiliated with the Empire television series. However,
none of these survey respondents gave the name of the Empire television series as a reason for
their answers, and therefore, there is no basis for concluding that these respondents were
referring to "Empire Distribution" or "Empire Recordings" either.
Table 11
Verbatims for Survey Respondents Who Said "Empire" or An Unnamed Music
Company or Entity That Puts Out Music Was the Source, the Sponsor of, or Affiliated
With the Empire Television Series*
ID

Questions and Responses

10011 D1/D2
E2/E3

Don't know. / Not applicable.


Music. / They write the songs.

10073 D1/D2
E2/E3

Don't know. / Not applicable.


Music. / They have a nice song track.

10124 F2/F3/F4 Music producers. / Because of the music used./Don't know.


G2/G3/G4 Music industry. / Because of the show's theme. / Don't know.
10135 D1/D2
E2/E3

Don't know. / Not applicable.


Music videos. / Musical artists in the clip.

10280 D1/D2
E2/E3

Don't know. / Not applicable.


Because of the songs that are played in the video.

10328 D1/D2

Music company. / Because it's about music.

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Table 11
Verbatims for Survey Respondents Who Said "Empire" or An Unnamed Music
Company or Entity That Puts Out Music Was the Source, the Sponsor of, or Affiliated
With the Empire Television Series*
ID

Questions and Responses

10395 D1/D2
E2/E3

Don't know. / Not applicable.


Music. / Heavy music theme.

10397 G/G3/G4

Music companies. / Entertainment. / Certain guidelines, true facts about the


artist, if they are real.

10433 G2/G3/G4 Movie or music. / The way the show is produced. / Don't know.
10490 D1/D2

E2/E3
F2/F3/F4

I'm not sure, but it seems like a joint venture between a major broadcaster and
a record company in order to try to sell more singles and boost viewership,
similar to Glee and Nashville. / Because they push new music and then prompt
you to download it, while following a pretty generic drama, soap-opera-inspired
story-line, much like Glee and Nashville.
Music. / Because they make music a central element of the show, just like
Nashville.
Some large record company, not sure which one./ Because they're all hurting
for record sales, and this seems like a worthy money-making endeavor for
them. / Pop music.

10518 F2/F3/F4

The company who made the music and the artists who are singing the songs. /
They talked about it in the TV interviews that the actors give. / Don't know.

10629 D1/D2
E2/E3

Don't know. / Not applicable.


Music. / Because this show is produced from the lives of a family that started a
record label.

10801 D1/D2
E2/E3

Don't know. / Not applicable.


Music. / They have to.

10804 D1/D2

A music company. / Because it is about music. .

F2/F3/F4

Some music company. / It's about music. / A music CD.

10825 D1/D2
E2/E3

Don't know. / Not applicable.


Sex, music, homosexuality. / The last show I saw was based on those things.

10915 D1/D2
E2/E3
F2/F3/F4
G2/G3/G4

Empire. / Empire.
Empire. / Empire.
Empire. / Empire. / Empire.
Empire. / Empire. / Empire.

11003 G2/G3/G4 Maybe a music company since there is music being played and sung in the
show. / Because the show promotes a lot of things, they would have to be
affiliated with another business. / Different famous singers, actors and
actresses.
11179 D1/D2

Empire. / Don't know.

*Responses are shown for questions in which the respondent either said "Empire" or an unnamed music
company or entity that puts out music was the source, the sponsor of, or affiliated with the Empire television
series.

17
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IV.

Conclusions
The Field Survey was performed according to accepted survey standards and in

conformity with the guidelines discussed in the Federal Manual for Complex Litigation, 4th Ed.
11.493 (2004). Based on the overall design and execution of the Field Survey, it provides
representative and reliable information regarding potential viewers of the Empire television
series. In my opinion, the Field Survey strongly supports the conclusion that potential viewers of
the Empire television series are not likely to mistakenly believe that Empire Distribution (or
Empire Recordings) is the source, the sponsor of, or affiliated with the Empire television series
(i.e., there is not a likelihood of confusion).
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed this 23rd day of November 2015 at San Francisco, California.

E. Deborah Jay, Ph.D.

18
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Twentieth Century Fox Television, a division of


Twentieth Century Fox Film Corporation,
and
Fox Broadcasting Company
v.
Empire Distribution, Inc.

A Study of Likelihood of Confusion

November 2015

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Table of Contents
Introduction

Methodology

Results

18

Conclusions

22

Appendix 1

Philip Johnson Curriculum Vitae

Recent Cases In Which Philip Johnson Has Testified

Appendix 2

Questionnaire

Appendix 3

Exhibits

Amazon Desktop/Laptop

Google Play Desktop/Laptop

Google Play Smartphone/Tablet

iTunes Desktop/Laptop

iTunes Smartphone/Tablet

Spotify Desktop/Laptop

Spotify Smartphone/Tablet for Apple

Spotify Smartphone/Tablet for Android

Retail Store (i.e., CD cover)

Appendix 4

Verbatim Comments from Respondents

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Introduction
1.

Currently, I am the President of JJG Group, LLC, a company specializing in litigationrelated market research services. Until January 2014, I was the Chief Executive Officer
of Leo J. Shapiro and Associates, Inc., a market research and consulting firm that, among
other activities, conducts surveys.

2.

Over more than 40 years, I have designed and supervised hundreds of surveys measuring
consumer behavior, opinion, and beliefs concerning brands and products, employing a
wide range of research techniques. I have given lectures before the American Bar
Association (ABA), the Practising Law Institute (PLI), the American Intellectual
Property Law Association (AIPLA), and the International Trademark Association (INTA)
on the use of survey research in litigation. I am a member of the American Marketing
Association (AMA), the American Association for Public Opinion Research (AAPOR),
and the International Trademark Association (INTA). I have a B.S. degree in Psychology
from Loyola University and an M.B.A. degree from the University of Chicago. A
description of my background and a list of cases in which I have offered testimony at trial
or deposition during the past four years are attached to Appendix 1 of this Report.

3.

During November 2015, I was retained by counsel from the law firm OMelveny &
Myers LLP, on behalf of its clients Twentieth Century Fox Television, a division of
Twentieth Century Fox Film Corporation, and Fox Broadcasting Company (collectively,
Fox). Fox created and produces the fictional television series, Empire. I understand
that a dispute has arisen between Fox and Empire Distribution, Inc. (Empire

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2
Distribution), a record label and music distribution company focusing on hip-hop and
rap, concerning Foxs use of the name Empire in connection with its television series,
including its soundtrack music. 1

4.

I was asked to design and conduct research that would measure the extent to which, if
any, Foxs use of the name Empire is or is not likely to cause confusion when music
consumers are exposed to Empire Distributions name as they would be if they were
actually shopping for hip-hop or rap music. More specifically, I was asked to examine
whether consumers of hip-hop or rap music were likely to mistakenly believe that Empire
Distributions product offerings come from the Empire television series or Fox, or are
related to, sponsored or approved by, or affiliated with the Empire television series or
Fox. What follows is a report on the design, execution, results, and conclusions drawn
from this research.

5.

Materials that I have reviewed and relied upon in formulating my survey and stated
opinions include the following:

Case Pleadings:

Twentieth Century Fox Television, Twentieth Century Fox Film


Corporation, and Fox Broadcasting Company v. Empire Distribution, Inc;
Complaint for Declaratory Relief (dated: March 23, 2015)

Twentieth Century Fox Television, Twentieth Century Fox Film


Corporation, and Fox Broadcasting Company v. Empire Distribution, Inc;
Empire Distribution, Inc.s Counterclaims (dated: June 4, 2015)

I understand that Empire Distribution claims to own the mark Empire Recordings. Empire Distribution, Inc.s
Counterclaims; page 4; June 4, 2015.

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Market Research:

Music Survey Tables, Online Caravan ORC International (dated: October


8 - 11, 2015)

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Methodology
6.

The survey methodology follows the general pattern of the Eveready test, which is
frequently used to measure likelihood of confusion. This design produces a very direct
measure of confusion as to source or sponsorship. 2

7.

The survey methodology employed five different cells representing distribution channels
that consumers typically use to purchase, stream, or download music, including music
offered by Empire Distribution. Respondents were assigned to a specific survey cell
based on which distribution channel they use to purchase, stream, or download music.

8.

Amazon
Google Play
iTunes
Spotify
Retail Store

Each survey cell utilized corresponding exhibit versions representing the various
platforms through which consumers can actually purchase and access music (i.e.,
desktop, laptop, smartphone, tablet, or CD) within these distribution channels. There
were nine exhibit versions in total:

Amazon Desktop/Laptop
Google Play Desktop/Laptop
Google Play Smartphone/Tablet
iTunes Desktop/Laptop
iTunes Smartphone/Tablet
Spotify Desktop/Laptop
Spotify Smartphone/Tablet for Apple
Spotify Smartphone/Tablet for Android
Retail Store (i.e., CD cover)

Union Carbide Corp. v. Ever-Ready Inc., 531 F.2d 366 (7th Cir. 1976).

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9.

The specific exhibit version that was shown to each respondent was dictated by which
distribution channel they use to purchase, stream, or download music and what type of
device they use most often when purchasing, streaming, or downloading music. For
example, if a respondent reported using Spotify to purchase, stream, or download music
(in S6), and said s/he uses an Apple smartphone most often to purchase, stream, or
download music on Spotify (in Q1a-b), then the respondent was shown a survey exhibit
that depicted what s/he might see while using Spotify on a mobile device from Apple.
Respondents were exposed to only one exhibit during the course of the survey.

10.

The breakdown of completed interviews by survey cell and exhibit version is as follows:

ALL RESPONDENTS
Amazon Desktop/Laptop
Google Play (net):
Desktop/Laptop
Smartphone/Tablet
iTunes (net):
Desktop/Laptop
Smartphone/Tablet
Spotify (net):
Desktop/Laptop
Smartphone/Tablet (net):
Smartphone/Tablet for Apple
Smartphone/Tablet for Android
Retail Store (i.e., CD cover)

EXHIBIT 9
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Total
(1056)
218
213
96
117
216
116
100
209
105
104
59
45
200

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11.

Each exhibit depicts the Empire Recordings name in the manner that consumers would
encounter it when shopping for hip-hop or rap music, specifically on the CD cover and
online music store and service listings for Sage the Geminis Remember Me album.
This album was selected because Empire Distribution reports that Sage the Gemini is one
of its top selling artists. 3

12.

Reduced size images of the Retail Store and iTunes Desktop/Laptop survey exhibits are
shown below:
Retail Store (i.e., CD cover) 4

Empire states that it has sold more than 3,000,000 records for Sage the Gemini. Empire Distribution, Inc.s
Counterclaims; page 5; June 4, 2015.
4
The CD cover (i.e., Retail Store exhibit) depicted both Empire Distributions logo and the Empire Recordings
name.

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iTunes Desktop/Laptop

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13.

Between November 2 and 15, 2015, online interviews were conducted with 1056
consumers of hip-hop or rap music. 5 The national sample was drawn from an online
panel provided by Research Now. Age, gender, ethnicity, and regional quotas were
established based on data provided by ORC International regarding consumers of hip-hop
or rap music. The distribution of completed interviews in this study is as follows:

Age
18-24 Years
25-34 Years
35-44 Years
45-54 Years
55+ Years
Gender
Male
Female
Race/Ethnicity
White/Other (net):
White/Caucasian
Asian
Native American
Other
African-American/Hispanic (net):
Black/African-American
Hispanic/Latino(a)
Refused
Census Region
Northeast
Midwest
South
West

Distribution of HipHop/Rap
Consumers 6

Survey

27%
34
26
8
5

26%
34
27
9
5

45%
55

46%
54

55%
N/A
N/A
N/A
N/A
45%
N/A
N/A
N/A

54%
45
7
1
2
45%
30
15
*

14%
19
42
25

14%
19
42
25

5
However, 45 interviews were excluded from these tabulations due to their responses to the post-screening
classification question (C1). An additional 23 interviews were excluded for quality control reasons and 3 interviews
were excluded due to validation failure. No one in these excluded groups named Fox or made a reference to Foxs
television show, Empire, or its soundtrack music.
6
Music Survey Tables. Source: Online Caravan ORC International; October 8 - 11, 2015.

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14.

Given that the survey was designed to measure the extent to which, if any, consumers
mistakenly believe that Empire Distributions product offerings come from the Empire
television series or Fox, or are related to, sponsored or approved by, or affiliated with the
Empire television series or Fox, the proper survey universe is Empire Distributions
potential customers. 7 In order to reach Empire Distributions market, interviews were
conducted with consumers 18 years of age and older who plan to purchase, stream, or
download hip-hop/rap music in the next 60 days and who use Amazon, Google Play,
iTunes, Spotify, and/or a Retail Store to purchase, stream, or download music.
Respondents must have met all of the following criteria:

15.

Live in the United States.

Must be 18 years of age or older.

Must plan to purchase, stream, or download hip-hop/rap music in the next 60


days.

Must usually use one of the following channels to purchase, stream, or


download music: Amazon, Google Play, iTunes, Spotify, or a Retail Store.

The respondent, or anyone in his/her household, must not work for a market
research or advertising firm; or a manufacturer, retailer, or distributor of music.

Must be wearing his/her eyeglasses or contact lenses at the time of the interview
if he/she usually wears them when reading material on a computer screen.

Respondents were given the following introduction:


Welcome to our survey. We want to assure you that we are interested only in your
opinions and are not connected with the sale of any product or service. Your
identity will be kept strictly confidential. If you normally wear eyeglasses or
contact lenses when reading material on a computer screen, please take them out
and put them on.
NOTE: Please return to this survey from a personal computer or laptop if
you are currently using a mobile device or tablet to access this survey.

McCarthy, J. Thomas. McCarthy on Trademarks and Unfair Competition, Fourth Edition, Volume 5, 32:159,
page 32-249. 2001.

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16.

The specific screening questions proceeded as follows:


S1

In what state do you live?

S2

<DROP DOWN LIST>

What is your age?


OPEN-END

S3

What is your gender?

S4

Which of the following best describes your ethnicity?

S5

Male
Female

Black / African-American
White / Caucasian
Hispanic/Latino(a)
Asian
Native American
OtherPlease specify.

Do you plan to purchase, stream, or download any of the following types of music
in the next 60 days?
No

Pop/Current Hits
Country
Hip-Hop/Rap
Classic Rock
Jazz
Indie/Modern Rock

EXHIBIT 9
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Yes

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11
S6

Which of the following do you usually use to purchase, stream, or download


music? Check all that apply.

S7

Amazon
Rhapsody
Google Play
Rdio
iTunes
Spotify
iHeartRadio
Pandora
Retail Store (not online purchase)
None of the above

Do you, or does anyone in your household, work for any of the following?
A market research or advertising firm
A manufacturer, retailer, or distributor of
electronics
A manufacturer, retailer, or distributor of
music
A cellular phone service provider

S8a

Yes

Do you usually wear eyeglasses or contact lenses when reading material on a


computer screen?

S8b

No

No
Yes

Will you please wear your eyeglasses or contact lenses for the remainder of the
survey?

No
Yes

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S9

For survey quality control purposes, please select the number 8.

17.

10
9
8
7
6
5
4
3
2
1
0

All screened and qualified respondents were given the following instructions not to refer
to or look up any information online, use reference materials, or discuss the questions
with anyone else.
It is very important that you do not refer to or look up any information on the
Internet or use reference materials that you may have available while you are
taking the survey.
Make sure any other applications on your computer are closed. Please answer the
questions on your own without discussing them with anyone else.
If you dont know the answer to a question, select the DONT KNOW response
option or type it in. Please do not guess.

18.

In order to determine which exhibit they would be shown in the survey, respondents were
asked a few additional questions about what type of device they use most often when
purchasing, streaming, or downloading music. Respondents were then shown an exhibit
version tailored to their responses to these questions. For example, if a respondent
reported using Spotify to purchase, stream, or download music (in S6), and said s/he uses
an Apple smartphone most often to purchase, stream, or download music on Spotify (in
Q1a-b), then the respondent was shown a survey exhibit that depicted what s/he might

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see while using Spotify on a mobile device from Apple. Respondents were exposed to
only one exhibit during the course of the survey.
Q1a

Which of the following devices do you use most often when you purchase, stream,
or download music on <GOOGLE PLAY/ITUNES/SPOTIFY>?

Q1b

Which of the following best describes your <SMARTPHONE/TABLET>?

19.

Desktop
Laptop
Smartphone
Tablet
Other

Apple device
Android device
Other

Respondents were then shown the survey exhibit and told that this is some music they
might see if they were looking for hip-hop or rap music.
This is some music that you might see if you were looking for hip-hop or rap
music. Please scroll through and look at it as you would if you were actually
shopping for hip-hop or rap music. Click the button when you are ready to
advance.

20.

In the survey, respondents were asked their belief about the source of the music they saw,
what else they believe comes from the same source of the music, and whether they
believe the source of the music is related to, sponsored or approved by, or affiliated with
any other source. In order to understand the basis for their beliefs as well as exactly what
source or product they are referring to, respondents were then asked open-ended
questions that allowed them to explain their answers in their own words and clarify each
survey response.

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21.

The exact questions used, and the sequence in which they occurred, are as follows: 8
Q2a

Who or what company do you believe makes or puts out the music you just saw
OR do you not know?

Q2b

What makes you say that <INSERT RESPONSE GIVEN IN Q2a> makes or puts
out this music? Any other reasons? (Please list all reasons.)

Q3a

OPEN-END
Dont know

Who or what else, if anything, do you believe is related to, sponsored or approved
by, or affiliated with whoever makes or puts out this music OR do you not know?

Q4b

OPEN-END
Nothing else

What makes you say that <INSERT RESPONSE GIVEN IN Q3a-b> comes from
the same person or company who makes or puts out this music? Any other
reasons? (Please list all reasons.)

Q4a

OPEN-END
Dont know

Anything else?

Q3c

OPEN-END
Dont know

What else, if anything, do you believe comes from the same person or company
who makes or puts out this music OR do you not know?

Q3b

OPEN-END
Dont know

OPEN-END
Dont know

Anything else?

OPEN-END
Nothing else

Questions 2b, 3c, and 4c probe for multiple reasons corresponding to how respondents answer in Questions 2a, 3ab, and 4a-b.

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Q4c

What makes you say that <INSERT RESPONSE GIVEN IN Q4a-b> is related to,
sponsored or approved by, or affiliated with whoever makes or puts out this
music? Any other reasons? (Please list all reasons.)

22.

OPEN-END
Dont know

In order to ensure that the respondent, or anyone in his/her household, did not work for a
television, film, or media company (such as Fox), the respondent was asked the following
post-screening classification question:
C1

Do you, or does anyone in your household, work for any of the following?
A luxury goods company
A television, film, or media company
A personal care company

23.

No

Yes

This question was asked toward the end of the survey, rather than at the beginning, in
order to prevent any potential bias introduced by the question. A total of 45 participants
were disqualified based on their response to this question and are not included in these
tabulations. No one in this excluded group named Fox or made a reference to Foxs
television show, Empire, or its soundtrack music.

24.

At the end of the survey, each respondent was asked if the survey represented a true and
complete account of their responses. A total of 3 participants were disqualified based on
their response to this question and are not included in these tabulations. No one in this
excluded group named Fox or made a reference to Foxs television show, Empire, or its
soundtrack music.

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Please select which best describes how you feel about the validation statement
below:
During this session I have recorded a truthful and complete account of my answers
to this survey.

25.

I have read and AGREE with the above validation statement.


I do NOT AGREE with the above validation statement.

A copy of the questionnaire is attached to Appendix 2 of this Report. Copies of the


exhibits used are attached to Appendix 3 of this Report. Verbatim comments from all
respondents are attached to Appendix 4 of this Report.

26.

Interviewing was administered and supervised, under my direction, by Willow Research,


LLC, a company that specializes in the administration of market research surveys.

27.

Based on the sample size of 1056 interviews, the statistical error rate for the key
measures in this study falls into the range of 0.6% for a statistic such as 1% at the 95%
confidence level. In other words, one would expect that 95 times out of 100, a
measurement that was actually 1%, would accurately be represented in the data by a
statistic as high as 1.6%, or as low as 0.4%.

28.

This study was conducted using a double blind technique where neither the company that
administered the survey panel (i.e., Research Now) nor the respondents were aware of the
purpose of the research or the identity of the party who commissioned it. The
methodology, survey design, execution, and reporting were all conducted in accordance
with generally accepted standards of objective procedure and survey technique.

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29.

The work performed to design, carry out, and report this study is covered by a billing of
$95,000. Additional time required for trial testimony or deposition will be billed at a rate
of $7,000 per day, plus expenses. The compensation is in no way contingent on the
outcome of this matter.

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Results
30.

When asked who or what company they believe makes or puts out the music they just
saw, respondents most frequently name either the distribution channel they were shown
or Sage the Gemini. Just one respondent (0.1%) is classified as reporting the false belief
that the Empire television show or its soundtrack music is the source of the music he
saw. 9 No one reports the false belief that Fox is the source of the music s/he saw.
Q2a:

Who or what company do you believe makes or puts out the music you just
saw OR do you not know?

ALL RESPONDENTS
All Who Have a Belief:
Sage the Gemini
Amazon
iTunes/Apple
Spotify
Record Company/Label
Google Play
Empire Recordings/Empire
Records
UMG Recordings/Universal
Music Group
Music/Music Genres
Republic/Republic Records
Name Distribution Channels
Empire TV Show
Fox
Other (Net)**
Dont Have a Belief:

Total Amazon
(1056)
(218)
100%
100%
40%
51%
8
9
6
27
6
2
5
0
4
6
4
*

Google Play
(213)
100%
43%
7
*
5
*
4
17

iTunes
(216)
100%
37%
6
0
22
0
2
1

Spotify
(209)
100%
44%
8
0
1
26
5
*

Retail
(200)
100%
24%
8
0
0
0
6
0

1
1
1
1
*
0
3
60

2
*
*
0
0
0
2
49

*
1
*
1
0
0
4
57

0
1
0
2
0
0
4
63

*
0
0
*
*
0
2
56

2
2
2
0
0
0
2
76

*0.5% or fewer mentions.


**1% or fewer mentions each.
NOTE: Table may sum to more than total due to multiple mentions by some respondents.
9

Respondent ID #476. Q2a: Although I have not heard of Sage the Gemini before, the graphic that was presented
looks exactly like how I view the musical selections of a particular artist on my Motorola Moto G. Also, when I saw
the word Empire, I immediately thought of the television series of the same name. There is currently a story line
where Luscious Lyon is resurrecting Gutter Records, featuring hardcore rap.
While this respondent is classified as confused, he appears to be simply reporting a spontaneous association due to
the name.

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31.

When asked what else, if anything, they believe comes from the same person or company
who makes or puts out this music, respondents generally name other music/music genres
(7%), artists other than Sage the Gemini (4%), or other products (3%). Just one
respondent (0.1%) is classified as reporting the false belief that the producer of the
Empire television show or its soundtrack music is related to the music she saw. 10 No one
reports the false belief that Fox is related to the music s/he saw.
Q3a:

What else, if anything, do you believe comes from the same person or
company who makes or puts out this music OR do you not know?

ALL RESPONDENTS
All Who Have a Belief:
Music/Music Genres
Name Artists
Name Other Products
Movies/DVDs
Sage the Gemini
Clothing/Shoes
Amazon
Record Company/Label
Streaming TV Shows
Headphones/Electronics
Good/Great/Like
Google Play
iTunes/Apple
Spotify
Empire TV Show
Fox
Other (Net)**
Dont Have a Belief:

Total
(1056)
100%
24%
7
4
3
2
1
1
1
1
1
1
1
1
1
*
*
0
6
76

Amazon
(218)
100%
29%
8
4
8
1
3
3
3
2
1
1
*
*
*
0
0
0
7
71

Google Play
(213)
100%
24%
5
4
2
2
1
1
*
*
1
*
2
2
*
0
*
0
8
76

iTunes
(216)
100%
22%
6
5
3
3
*
1
0
*
2
2
*
0
2
0
0
0
6
78

*0.5% or fewer mentions.


**1% or fewer mentions each.
NOTE: Table may sum to more than total due to multiple mentions by some respondents.

10

Respondent ID #228. Q3a: The producer of the show Empire.

EXHIBIT 9
130

Spotify
(209)
100%
22%
9
3
3
1
*
*
0
*
*
1
1
0
0
2
0
0
5
78

Retail
(200)
100%
22%
8
6
2
0
2
*
0
0
0
0
1
0
0
0
0
0
4
78

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 143 of 176 Page ID
#:791
20
32.

When asked who or what else, if anything, they believe is related to, sponsored or
approved by, or affiliated with whoever makes or puts out this music, respondents
generally name artists other than Sage the Gemini (4%). No one names the Empire
television show, its soundtrack music, or Fox.
Q4a:

Who or what else, if anything, do you believe is related to, sponsored or


approved by, or affiliated with whoever makes or puts out this music OR do
you not know?

ALL RESPONDENTS
All Who Have a Belief:
Name Artists
Record Company/Label
Music/Music Genres
Name Other
Source/Producer
Amazon
Sage the Gemini
iTunes/Apple
Good/Great/Like
Google Play
Empire TV Show
Fox
Other (Net)**
Dont Have a Belief:

Total
(1056)
100%
18%
4
2
2

Amazon
(218)
100%
21%
6
3
2

Google Play
(213)
100%
18%
5
1
1

iTunes
(216)
100%
20%
3
2
3

Spotify
(209)
100%
15%
3
2
2

Retail
(200)
100%
16%
6
2
2

1
1
1
1
1
1
0
0
6
82

3
3
1
*
*
0
0
0
6
79

2
0
3
1
1
4
0
0
4
82

*
0
0
3
*
0
0
0
9
80

1
0
*
1
1
0
0
0
6
85

*
0
*
0
1
0
0
0
6
84

*0.5% or fewer mentions.


**1% or fewer mentions each.
NOTE: Table may sum to more than total due to multiple mentions by some respondents.

EXHIBIT 9
131

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 144 of 176 Page ID
#:792
21
Analysis of Empire TV Show Mentions
33.

When aggregating all 1056 respondents responses to the survey questions, just two
respondents (0.2%) are classified as reporting the false belief that the Empire television
show is the source of, or is related to Sage the Geminis Remember Me album. No one
reports the false belief that Fox is related to Sage the Geminis Remember Me album.

34.

This 0.2% statistic is below the standard error rate for this survey (0.6%), such that it
has no statistical significance and is properly treated as a zero result.
Unduplicated Net Q2-4

ALL RESPONDENTS
Empire TV Show
Not Empire TV Show

Total
(1056)
100%
0.2%
99.8

Amazon
(218)
100%
0.0%
100.0

Google Play
(213)
100%
0.5%
99.5

EXHIBIT 9
132

iTunes
(216)
100%
0.0%
100.0

Spotify
(209)
100%
0.5%
99.5

Retail
(200)
100%
0.0%
100.0

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 145 of 176 Page ID
#:793
22

Conclusions
35.

The results of this study indicate that there is no likelihood of confusion with Fox or
Foxs fictional television series, Empire, or its soundtrack music, among hip-hop or rap
music consumers when they are exposed to Empire Distributions product offering as
they would normally encounter it when shopping for hip-hop or rap music.

36.

Only two respondents (0.2%) in this research, which includes more than 1000 music
consumers across the United States, are classified as reporting the false belief that the
Empire Distribution product comes from the Empire television series or Fox, or is related
to, sponsored or approved by, or affiliated with the Empire television series or Fox. This
0.2% statistic is below the standard error rate for this survey (0.6%), such that it has no
statistical significance and is properly treated as a zero result.

37.

Overall, based on the results of this study, it is my opinion that Foxs use of the Empire
name in connection with its fictional television series does not cause a likelihood of
confusion such that relevant consumers falsely believe that Empire Distribution product
offerings come from Fox, or are related to, sponsored or approved by, or affiliated with
Fox.

EXHIBIT 9
133

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 146 of 176 Page ID
#:794
23
Pursuant to 28 U.S.C., Section 1740, I declare under penalty of perjury under the laws of the
United States that the foregoing is true and correct.

Executed on November 24, 2015 at Friday Harbor, Washington.


________________________________________
Philip Johnson

EXHIBIT 9
134

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 147 of 176 Page ID
#:795

EXHIBIT 10

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 148 of 176 Page ID
#:796
EMPIRE SEASON 1
PROOF OF PURCHASE
"TV'S BIGGEST SMASH OF THE PAST DECADE."
DVD Cot. I 2299277
ROBERT RORKE -NEW YORK POST

EXHIBIT 10
135

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 149 of 176 Page ID
#:797

EXHIBIT 11

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 150 of 176 Page ID
#:798

Exhibit 11, a true and correct copy of


the DVD set Empire: The Complete
First Season, has been lodged with the
Court.

EXHIBIT 11
136

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 151 of 176 Page ID
#:799

EXHIBIT 12

Case 2:15-cv-02158-PA-FFM Document 41-4


Filed 12/15/15 Page 152 of 176 Page ID
~===-=--#:800
Twentieth Century Fox Television

Empire
"The Devils Are Here "
2AXP01

16x 9 Anamo rphic


NT S C/Stereo
TRT 43:45
Case 2:15-cv-02158-PA-FFM
12/11/15

2015 Twentieth Century Fox Film


Corporation

Twentieth Century Fox Television

Empire
"Without a Country"
2AXP02

16x9 Anamorphic
NTSC/Stereo
TRT 43:54
Case 2 : 15-cv-02158-PA-FFM
12/11 /15

2015 Twentieth Century Fox Film


Corporation

EXHIBIT 12
137

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 153 of 176 Page ID
#:801
Twentieth C
entury Fo
x eiev;sion

mp1re

''Fires OfH
eaven''
2AXP03

.
16x9 A.narno

NTscis rph1c

T
tereo
RT 43:57
ase 2 15
. -CV-02158-PA-FF

2015 T
12111115
M
Wentieth C
enturyF
orpor.atton

ox Film
.

Twentieth Century Fox Television

Empire
"Poor Yorick"
2AXP04

16x9 Anamorphic
NTSC/Stereo
TRT 43:57
Case 2:15-cv-02158-PA-FFM
12111/15

2015 Twentieth Century Fox Film


Corporation

EXHIBIT 12
138

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 154 of 176 Page ID
#:802

Twentieth Century Fox Television

Empire
"A High Hope For A Low Heaven"
2AXP06

16x9 Anamorphic
NTSC/Stereo
TRT 43:57
Case 2:15-cv-02158-PA-FFM
12/ 11/ 15

2015 Twentieth Century Fox Film


Corporation
,?'

EXHIBIT 12
139

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 155 of 176 Page ID
#:803
Twentieth Century Fox Television

Empire
"True Love Never"
2AXP07

16x9 Anamorphic
NTSC/Stereo
TRT 43:57
Case 2:15-cv-02158-PA-FFM

12111115

2015 Twentieth Century Fox Film


Corporation

Twentieth

entury F
. ox Tefevision

empire

''NI

Y Bad Parts
2AXPo8

16x9"
,,narnorph
NTscistereo ic
TRr 43:45

Case2.
15
-cv-0215

201s r

8-PA-FFNf

12111115

Wentieth

entury F
Corporation
ox Film
.p-

EXHIBIT 12
140

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 156 of 176 Page ID
#:804

lwentieth

Cent

lJ ry f:,

/::"

ox Ii

~
~tr.'''Pilie
C,f"h

(J,

efevisJon

2AXp rote?
10

EXHIBIT 12
141

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 157 of 176 Page ID
#:805

EXHIBIT 13

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 158 of 176 Page ID
#:806

Exhibit 13, a true and correct copy of


ten DVDs with the first ten episodes of
Season 2 of Empire, has been lodged
with the Court.

EXHIBIT 13
142

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 159 of 176 Page ID
#:807

EXHIBIT 14

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 160 of 176 Page ID
#:808

EXHIBIT 14
143

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 161 of 176 Page ID
#:809

EXHIBIT 15

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 162 of 176 Page ID
#:810

Exhibit 15, a true and correct copy of


the CD Empire: Original Soundtrack
From Season 1, has been lodged with
the Court.

EXHIBIT 15
144

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 163 of 176 Page ID
#:811

EXHIBIT 16

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 164 of 176 Page ID
#:812

ORIGINAL SOUNDTRACK SEASON 2 VOLUME 1

8
BORN TO LOVE U

E...,

JUSSIE SMOLLETT

2 SNITCH B ITCH FEAT 'TERRENCE HOWARD AND PETE


3 HOURGLASS FEAT V BOZEMAN
4 GET NO BET TER (2.0) FEAT. SERAYA H
5 BOUT 2 BLOW FEAT YAZZ ANO TIMBALANO
6 NO DOUBT ABOUT IT FEAT JUSSIE SMOLLETT AND P
7 AIN'T ABOUT THE MONEY FEAT JUSSIE SMOLLE TA

AZZ

8 NEVER LOVE AGAIN FEAT JUSSIE SMOLLETT


9 RUN NIN'

"""'T v,,.zz JAM LA VELAZQUEZ. RAQUEL CAS"RO AND

10 BOOM BOOM BOOM BOO M FEAT TERRENCE HOWARD At DBRE Z


11 HEAVY FEAT JUSSIE SMOLLETT

FOX .COM / EMPIRE


COLUMBIARECORDS.COM
C&iZD151WE~TElHCENl\IRl'FQXFIMCORPOOArotl OISTRIBUTEDBYCOlt.t.!lllAAECDMSIOllOFSONl'lol.ISl:ENTlllTAIWEJITI
SSOIMOISONA\'ElU.N\VYOOl<.NY 100223211 l "'COUNBIA"AIC> REG US l>AJ &lM Off MAACA~ I WAAHING All

,C, ~RESrnvm Ul~DIJ'UOOWJNISAVIOlATlONOFN'PIXAlll.El.41'1S.flllA1111-PIR.ICYWNIJlllGUNAll!ltOAIZEDCOPTtlG


IS PUlllSIM.f UlillfR FECEJW. UW 8887517270 2

EXHIBIT 16
145

~ll~l l l l Hll

88751 72702

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 165 of 176 Page ID
#:813

EXHIBIT 17

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 166 of 176 Page ID
#:814

Exhibit 17, a true and correct copy of


the CD Empire: Original Soundtrack
Season 2 Volume 1, has been lodged
with the Court.

EXHIBIT 17
146

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 167 of 176 Page ID
#:815

EXHIBIT 18

12'14/2015 Case

Amazai.can:
Empire: MUBIC
From The
Piiat:12/15/15
Empire Cast MP3
Downloads
2:15-cv-02158-PA-FFM
Document
41-4
Filed
Page
168 of 176 Page ID
#:816
Digi1111 Music

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Empire: Music From The Pilot


Empire cast

Buy MP3 Allon $&.ti

J&rr.lllY 6, 2D15
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Amazon.can:
Empire: Music
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Empire Cast: MP3
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169 of 176 Page ID
Product Details
#:817

12114/2015 Case

Orlglnal Rel- Date: January 6, 2015

Rel- Dabl: January 6, 2015


Label: Columbla

RKord Company Rllqulred Metadata: Music file metadata contains unique purchase identifier. Learn more.
Total Langtll: 11:36
Ganrea:

Pop

ASIN: BOORDEZ87Q
Average Custom RIM-: ~ @ (31 customer reviews)
Amazon Bast Sallera Rank: #23,000 Paid in Albums {See Top 100 Paid in Albums)

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Most Helpful Customer Reviews


7 of 7 people found th following review helpful
-ome ahowl c:.n't - I t for morel
By TezeeTima on January 16, 2015

Most Recent Customer Reviews


FIVllStan

Formal: MP3 Music

Awesome show, great music, "klllei" acting skills! Pun Intended.. Loi.. But sad to only get one minute of the
first song "what is love" . I downloaded but WBS disappointed in Iha length which is literally less than even Iha
play on the show.... I hope they make a full length version and discount the 69 I paid for the tease version.
Daspita... The nist of the songs I downloaded wera graatl I look forward in downloading mora songs from the
show.
1 Comment

j Yes J ~

was this review helpful to you?

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FIVllStan

Great mu11cn muat download I


By Dk on January 7, 2015
Format: MP3 Music

Great music for a graat showl The show seams raally intarasting and the music is graatl
Was this IBView helpful lo you?

FIVllStan
Uke the music
Published 6 months ago by Rlta8506

I love itll Can\ wait for Season 2


Published 7 months ago by Valerie Posey

10 of 11 people found the following review helpful

1 Comment

Love, Love, Love this Music.


Published 6 months ago by Jimmie Gail

rYea I~

Report abuse

FIVllStan
Love every song
Published 8 months ago by ataphlove1201
J11111mlnl
Great workout musicl
Published 8 months ago by cathi

7 of 9 people found the foll owing review helpful


LOVE the ahow but. .

FIVllStan

By MARY on February 8, 2015


Formal: MP3 Music

- d Purchua

I really love the show and most of the music. My only disappointment Is all you get Is the same "snlpplts" of
the songs. I mistakenly thought they would be whole langth. While I will continua to ba a fan of the show, I
wonl buy anymore music from It. Thus the reason for the mediocre score.
1 Comment

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l Yes J~

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FIVllStan
very good
Published 8 months ago by QUEEN B 1973

FIVllStan

4 of 5 people round the following review helpful

T - n - favorite aongs thanks to this being available ao quickly.


By Shayweb on January 8, 2015

Excellent
Published 8 months ago by Ca~os Heyward

LOVE ITI

Formal: MP3 Music

My first fav was "Good Enough". second was "What is love". I look forward to what these two artists will
continue to bring to the show and the world.
Comment

Love it the Best show ever


Published 8 months ago by marylovalass

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j Y I~

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I LOVE every song as much as I LOVE the show.


tlmyfavorite
Published 9 months ago by shella qulntane

FiY11Stan
great music and show

Awasomamusic
Published 9 months ago by Amazon Cuslomer

By LuvchocolatOO on February 8, 2015


Fonnal: MP3 Music

Verified Purch. .

Love the show and I raally love Iha music. I like that it is vary close lo reality and the actors are fantastic and
that there is something going on at every tum. Tha music anhences the show encl that's the reason I watch it.
Comment

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lY

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Seen:h Cuatiomer Ravl8WW

"===========ll[

EXHIBIT 18
148

trt1psJlwww.amazon.com/g:i/product/BOORD EZ87Q?ie= UTFB&"Version*= 1&*entries*=O

Sea ch J

214

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 170 of 176 Page ID
#:818

EXHIBIT 19

12114/2015Case

Arn8ZQ'l.con: Empire:
Music From
'A Mwi Sirried
Empire cast:
MP3171
Downloads
2:15-cv-02158-PA-FFM
Document
41-4
Filed.Against':
12/15/15
Page
of 176 Page ID
#:819
man sinned against

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Empire: Music From 'A Man Sinned


Againsr

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Empire Cast
Add to MP3 Cart

November25, 2015
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3:18

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EXHIBIT 19
149

https://www.amazon.com/Empire-Music-Man-Sinned-AgainstJdJYBQ17XMOCO/ref.=sr_1_1?s=cmusic&ie=UTF8&qid=1460150519&sr-1-1-mp3-albums-bar-...

113

12114.12015Case

Amazon.c:iom: Empire:
Ml.Ilic Fram
'A Man Sirnd
Empre Cast
MP3172
Doovnloadll
2:15-cv-02158-PA-FFM
Document
41-4
FiledIGirwt.':
12/15/15
Page
of 176 Page ID
#:820

Empire: Music From 'My


Bad Palta'

Emplra: Music From 'Et Tu


Bnrta?'

Empire: Music Frcm 'True


Love Nevel'

Raady To Go (feat. JllllSI&


Smcllelt) (Pepe! Vfll'810n}

P-'lll (faat. Jusala


Smollett and Alicia Keya)

Empire Celt

Empire Call

Efr411re cut

Emplreca.t

Emplrecallt

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Product Detella
Otlgl1191...,_Dd9eNaov9111bllr25,2015
...._ n.19: Nov9111bllr 25, 2015
l..8bel:Cvlumbl9
lliloold CompPy Alqull9d llllllldD Mic file meCadalCe c:orU,. .;cp1 ~identifier. Loem more.

Total Length: 13:00


Gen....:
Pop

MIN: B017XMOCO
A--ae CulolMI' RN-. Be the flm to rwl9W tl'lls Item

Amaon a..t s.ri- Ruic #8,1114 Paid In Alluna (See Tep 100 Pak! In Abma)

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Satar :=:==========~
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What otMr Items Do Culltomlll'.I Buy Aftltr Vlewfng This lt.m?


P~I

{hl8I.. Jussi& Smollett end Alicia Keya)

Emplrecalt

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MinaclM {hl8I.. Yazz and Jamila Vlllliiz~)
Emplrecalt

$1.29

/ A pirc

PCIWlll!f1ll {hl8I.. Ju..10 Smollllll inl Alll:l111 Keya)

Empire callt

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12
Lieten with Prime
or buy for $1.29

EXHIBIT 19
150

$1..29

Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 173 of 176 Page ID
#:821

EXHIBIT 20

Empire Distribution

Page 1 of 3
Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 174 of 176 Page ID
#:822

BLOG

RADIO+TV

CONTACT
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Posted September 18, 2015

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NOW AVAILABLE ON:

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Reconcile

Reconcile - Plottin [produced

https://www.empi.re/

Opio

Back Seat Ridin' (Feat. Black

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EXHIBIT 20
151

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Empire Distribution

Page 2 of 3
Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 175 of 176 Page ID
#:823

Reconcile released his new EP "Catchin' Bodies" which includes his hit single

Opio & Free The Robots collaborate on their new joint album "Sempervirens" which

Tags: Reconcile , No Malice , Catchin' Bodies , Plottin'


Posted in HIP HOP EMPIRE New Releases

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Curtiss King

Give It 2 Me (Produced By I-7

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T.I. - Da Nic [EP]

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Derek Pope - Sunken City Redux [EP]

Posted September 11, 2015

Posted September 11, 2015

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Derek Pope

Payday

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EXHIBIT 20
152

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Empire Distribution

Page 3 of 3
Case 2:15-cv-02158-PA-FFM Document 41-4 Filed 12/15/15 Page 176 of 176 Page ID
#:824

The legendary T.I. dropped his new EP "Da Nic" which features Young Thug & Young

Tags: t.i. , Young Thug , young dro , Da Nic , ATL , Hip-Hop ,


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Former rapper Kidd Upstairs steps into his new singing role and switches his name to

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Posted in HIP HOP


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Copyright 2015
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EXHIBIT 20
153

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