Core Event: A federal district court in California recently reaffirmed the Rogers test as applicable protection for expressive works in trademark infringement cases, despite significant limitations imposed by the Supreme Court's 2023 Jack Daniel's v. VIP Products decision[1][3]. The most recent application occurred in Pepperdine University v. Netflix, Inc. (filed February 20, 2025), where the court granted defendants' motion to dismiss on March 31, 2026, finding that the Rogers test continues to protect the use of allegedly infringing trademarks when they serve creative rather than commercial source-identification purposes[3].
Who's Involved: The case involves Pepperdine University, a not-for-profit Christian university in Malibu, California, suing Netflix and Warner Bros. Television over the streaming series Running Point, which allegedly uses the university's "Waves" mark[3]. The broader legal landscape involves the Second Circuit (which originated the Rogers test in 1989), the Supreme Court, and multiple other federal circuits that have debated the test's application[1][5].
Context and Timeline: The Rogers test, established in Rogers v. Grimaldi (1989), was designed to balance First Amendment protections for artistic expression against trademark rights under the Lanham Act[2][5]. For approximately 30 years, it provided broad protection for expressive works—films, television, books, and songs—by requiring plaintiffs to prove either that trademark use lacked artistic relevance or explicitly misled consumers about source[4][5]. The Supreme Court's June 2023 Jack Daniel's decision significantly narrowed this protection by holding that the Rogers test does not apply when a mark is used as a source identifier, regardless of whether the use occurs within an expressive work[1].
Why It's Newsworthy Now: The Pepperdine ruling clarifies that despite Jack Daniel's, the Rogers test remains viable for distinguishing between trademark use as creative expression versus source identification—a critical distinction in entertainment and digital media contexts[3]. This matters because courts continue to grapple with inconsistent application of the test across circuits, particularly regarding newer technologies like NFTs and streaming content[4][6]. The decision provides practical guidance on when creators retain First Amendment protections even after the Supreme Court's limitations.