The intersection of trademark confusability and the First Amendment in entertainment has long been a delicate balance between artistic expression and intellectual property rights. Motion pictures, television shows, and other media frequently incorporate real-world brands, logos, and symbols as part of their storytelling or visual design. These uses have historically been shielded under the First Amendment, particularly through the Rogers test, which permits expressive uses of trademarks unless they mislead consumers regarding the source of the work.
This equilibrium was significantly altered by the Supreme Court’s decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC. The Court restricted the scope of the Rogers test, ruling that when a trademark is used to denote the source of a product or service, the First Amendment does not provide protection against trademark infringement claims. This shift has introduced new challenges for entertainment creators, who now face a more stringent legal environment when integrating third-party marks into their works.
Despite this change, many traditional uses of trademarks in entertainment - such as the depiction of real-world products in fictional settings - continue to be protected under the Rogers test. However, the boundary between permissible use and actionable infringement has become increasingly ambiguous, particularly when the use of a mark becomes central to the work’s identity or marketing strategy.
A recent case, Pepperdine University v. Netflix, Inc., highlights this tension. The university alleged that the fictional basketball team "Los Angeles Waves" in the series Running Point infringed on its trademark. The court determined that the use of the mark was not intended to identify the source of the series but rather to serve as part of the fictional narrative. This ruling reaffirmed the ongoing relevance of the Rogers test in cases where the use of a mark is expressive and not primarily for source identification.
Certain uses of third-party marks in entertainment can significantly elevate the risk of a trademark claim. For instance, the inclusion of real-world trademarks in promotional materials - such as posters, trailers, or social media posts - can be interpreted as an attempt to leverage the brand’s reputation. Similarly, the use of trademarks in merchandise based on the entertainment work, such as toys, apparel, or accessories, may be perceived as an effort to associate the product with a real brand, even if the intent is purely decorative.
To mitigate legal risk, entertainment producers should be cautious about how third-party marks are used in both the content and marketing of their works. Marks should be incorporated only if they serve a creative purpose and not as a source identifier. When uncertain, it is safer to limit the use of potentially risky marks to their exact appearance in the work itself, avoiding any association with a real-world brand or source.
Trademark monitoring is an essential component of intellectual property protection. Failing to act can result in costly legal battles, loss of brand value, and reputational damage. By taking proactive steps to safeguard intellectual property, businesses can avoid these pitfalls and secure their brand’s future. Whether operating as a small startup or a major entertainment company, the risks of not monitoring trademarks are substantial and real. Protect Your Brand: The Legal Foundation for Business Growth can provide key insights into brand safety.
The Rogers test remains a critical tool for protecting expressive uses of trademarks in entertainment. As the legal landscape continues to evolve, creators must remain vigilant, ensuring that their use of third-party marks does not cross into actionable infringement. Understanding Trademark Confusability and Its Impact on Businesses is essential for companies navigating these complex issues.