Netflix was about to release a comedic television streaming series, Running Point, that depicts a basketball team called the Los Angeles Waves, when Pepperdine University, whose athletic teams have been known as the “Waves” since its founding in 1937, and has trademark registrations for WAVES marks, sued Netflix for violating the Lanham Act (trademark infringement, dilution, false advertising, etc.) and sought a temporary restraining order (“TRO”). Pepperdine University v. Netflix, Inc., No. 2:25-cv-01429-CV (ADSx), 2025 WL 632983 (C.D. Cal. Feb. 26, 2025). Pepperdine alleged that the fictional Los Angeles Waves team used “WAVES” with a strikingly similar font and similar blue and orange colors, and that the messages and imagery depicted in Running Point were "inapposite of Pepperdine's values." 

The Central District for the District of California denied the TRO in view of Rogers v. Grimaldi, 875 F. 2d 994 (2d Cir. 1989) (“In the context of allegedly misleading titles using a celebrity's name, that balance will normally not support application of the Act unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.”); see also Punchbowl, Inc. v. AJ Press, LLC, 90 F.4th 1022, 1027 (9th Cir. 2024) (“First Amendment concerns sometimes require a heightened showing for a trademark infringement claim to proceed.”). Under Rogers, “in general the [Lanham] Act should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression.”

Where the allegedly infringing use of a trademark is part of an expressive work protected by the First Amendment, then “the Lanham Act does not apply unless the defendant's use of the mark (1) is not artistically relevant to the work or (2) explicitly misleads consumers as to the source of the content of the work.” Rogers, 875 F.2d 1028. 

The U.S. Supreme Court, however, recently held that the Rogers test does not apply where “an alleged infringer uses a trademark in the way the Lanham Act most cares about: as a designation of source for the infringer's own goods.” Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140, 153 (2023) (finding that the Rogers test did not apply to a dog toy that used “Bad Spaniels” and a shape that resembled a Jack Daniel's whiskey bottle as a trademark).  

Here, the district court found that Rogers applied because the use of "Waves" in the Running Point series was "simply expressive and is a plot point in the series" which did not speak to the source of the series. Indeed, "there is no showing that Defendants have suggested that Pepperdine is the source of the series." 

Applying Rogers, the use of "Waves" as a fictional team name was artistically relevant because it “was chosen as a nod to the real-life Lakers, whose team name also alludes to a body of water,” and evokes the Los Angeles area and the “Southern California ‘vibe,' associated with beaches, sun, surfing, and waves.” Thus, “the use of the 'Waves' name had at least some level of artistic relevance.” Furthermore, there was “no implicit, let alone explicit statement that misleads the consumer as to the source of the series.”

Professor Tushnet noted on her 43(B)log that "Rogers is still good law, at least for things that aren't titles."