Court Dismisses Pepperdine’s Nonsense Trademark Suit Against Netflix Over ‘Running Point’

A little over a year ago, we wrote about a fairly silly lawsuit filed against Netflix (and Warner Bros.) by Pepperdine University in California for trademark infringement. At issue is the Netflix show Running Point, which is a fictionalized story of a female executive thrust into ownership of a professional basketball team, inspired by the Lakers’ Jeannie Buss, who is also an Executive Producer on the show. The show’s fictional team, which is supposed to be a reference to the NBA’s Los Angeles Lakers, is called “The Waves”. Pepperdine’s sports teams are also called “The Waves”, which the school claimed made all of this trademark infringement.

They were wrong about that, as we said in the previous post. Creative works are given wide latitude in trademark law, specifically in that the Rogers test typically applies. Even in the aftermath of the Supreme Court’s terrible ruling on parody in the case of the Bad Spaniels and Jack Daniels lawsuit, this was always a situation in which the Rogers test would definitely apply. Specifically, SCOTUS’ decision that Rogers doesn’t apply when the offending trademark is used as a source identifier, because we’re talking about a fictional team used in a wider work of fiction, meaning the use isn’t an identifier or any source.

Netflix and Warner petitioned for dismissal for those very reasons and the now the court has agreed and the suit has been dismissed.

U.S. District Judge Cynthia Valenzuela said ‌on Tuesday , opens new tab that the fictional Los Angeles Waves basketball team in “Running Point” did not violate the Malibu, California, school’s rights because the show did not use the “Waves” name and ​logo as trademarks.

The ruling goes into much more detail, of course. It very specifically examines whether the Rogers test applies, deciding it does based on the usage. For example:

Here, Plaintiff fails to allege that the Waves mark was used by Defendants to exploit the success of Plaintiff’s sports teams or to create an association between the Running Point series and Pepperdine’s teams. Rather, at most, the FAC shows that the Waves mark is “immediately recognized” to identify the Running Point series, and that its use is synonymous with the series. These allegations, which Plaintiff concludes show that the Waves mark is used to “identify the show” are still not sufficient to show that the Waves mark was used as a designation of source for the series. Plaintiff’s repeated use of the words “identify” and “source-identification” do not actually show how the Waves mark was used to identify the source of the series. Rather, here, Defendants clearly claim to be the source of the series.

Finally, the Court is not persuaded by Plaintiff’s arguments regarding the marketing of the show or Defendants’ behavior in similar uses. Although Plaintiff alleges that Defendants’ used the Waves mark in marketing the Running Point series, this does not alter the Court’s above analysis that the Waves mark is not used to identify the source of the series. And the fact that Defendants have obtained trademarks in fictional businesses central to their shows in the past again does not show that Defendants have used the Waves mark to identify the source of Running Point here.

The ruling goes on to note that if Rogers applies, the Lanham Act does not. With source identifying out of the equation, the only remaining question is if the use in this case is artistically relevant. As the fictional team the main character owns, the name of that team is obviously artistically relevant.

Pepperdine has been given leave to amend its complaint into something that is actually legally sound, but I’m struggling to understand what that would even be. In lieu of an amended complaint, it seems that some creative works are still protected some of the time from nonsense trademark infringement claims, even in a post Bad Spaniels world.