Trademark Claims Against Netflix Dismissed Due to One-Letter Typo in Court Order

Trademark claims against Netflix concerning its popular “Running Point” comedy series were recently dismissed at the pleadings stage due to a one-letter misarticulation of applicable First Amendment law. The case, soon to be litigated on appeal, highlights the need to clarify the contours of trademark liability arising from creative works.

Pepperdine University filed the lawsuit last year against Netflix and co-defendants Warner Bros. and Kaling International, just one week before the “Running Point” series premiere.  Loosely based on the life of Los Angeles Lakers owner Jeanie Buss, the series stars Kate Hudson as the owner of the fictional basketball team the Los Angeles Waves. The popular series, which amassed instant popularity and ranked as Netflix’s #1 TV show, was quickly ordered for a second season that premiered April 23, 2026.

Pepperdine alleged that the “Los Angeles Waves” infringed the university’s WAVES trademarks for college athletics; the show’s creators countered that the use was protected artistic expression. Agreeing with the creators, the U.S. District Court for the Central District of California dismissed Pepperdine’s complaint based on Rogers, a well-established First Amendment defense to infringement. Under this defense, an accused infringement occurring within a creative work is generally non-actionable unless it “explicitly misleads as to the source or the content of the work.”

The court, however, misarticulated the Rogers test by one letter—using “of” in place of “or.” The one-letter difference is significant because it, unlike the established rule, makes virtually all instances of false endorsement within creative works immune from trademark liability.

Pepperdine has stated its intent to appeal the decision, with its Notice of Appeal at the U.S. Court of Appeals for the Ninth Circuit due May 15, 2026. Resolving this case, however, may require more than simply correcting a clerical error. If the appeal goes forward, its outcome will ultimately weigh on whether trademark owners can continue to expect compensation for unauthorized uses of their trademarks within media for entertainment value rather than as an indicator of source.

Rogers Defense: Explicit Deception as to Source or Content

Originating from the Second Circuit case Rogers v. Grimaldi in 1989, Rogers is an affirmative defense to trademark infringement that has been adopted by courts nationwide as a First Amendment defense for creators and artists. Rogers applies when the accused use occurs within a creative work such as a film or TV show. Once a defendant invokes Rogers, there is ordinarily no trademark liability unless the plaintiff shows that the accused trademark “explicitly misleads as to the source or the content of the work.”

This “source or content” standard is well-established, as affirmed by the Supreme Court when it famously addressed the Rogers test in 2024 in Jack Daniel’s Properties v. VIP Products. Content-related deception is necessarily broader than literal source confusion regarding who produced the artistic work at issue; otherwise, the Rogers test would not identify “source” and “content” as two different items. Supporting this principle, Lanham Act section 43(a) recognizes trademark infringement through false endorsement if consumers are led to falsely infer “affiliation, connection, association…sponsorship, or approval” of the accused artistic work. These false endorsement theories pertain to the content of the work, without requiring consumers to believe that the plaintiff was the actual source of the artistic work.

Understandably, Rogers is not defeated any time there is ordinary false endorsement sufficient to state a claim under the Lanham Act. To preserve free-speech latitude for artistic works, the Rogers defense is defeated only when it is shown that the alleged false endorsement of content is explicit.

The Court’s Error: Explicit Deception as to Source of Content

Whether Pepperdine’s alleged implied endorsement of the series is sufficiently “explicit” under Rogers is a question of degree that ordinarily should not be resolved on a motion to dismiss. The court, however, seemingly ignored the fact that false endorsement—i.e., explicit content deception not involving source—is even an avenue to defeat Rogers dismissal.

In its March 31, 2026, dismissal order, the court repeatedly misquoted the Rogers standard as requiring a showing that the series “explicitly misleads consumers as to the source of the content of the work.” (Order Granting MTD, pp. 6, 11.) The difference between “of” and “or,” though perhaps inadvertent, may have been outcome-determinative. “Source of the content” erroneously collapsed “content” into “source,” leading the court to focus only on source confusion. As a result, the court dismissed the complaint on the basis that consumers do not reasonably believe that the university actually helped produce the Netflix series.

At the motion to dismiss stage, the court is not supposed to make a merits evaluation and should instead focus on whether there are any facially plausible allegations of explicit false endorsement. Pepperdine’s complaint contained such plausible allegations: “Defendants’ use of ‘Waves’ in the show is explicitly misleading as to the product’s (i.e., Running Point’s) content. For example, with minimal artistic expression, Defendants use the WAVES marks in the same way that Pepperdine uses it—to refer to a Los Angeles-based basketball team. Similarly, Defendants’ use of the WAVES marks is explicitly misleading as to content because consumers will be confused about an explicit misrepresentation of Pepperdine’s endorsement of the team, the show, and its contents.” (FAC, par. 93.)

Supporting the allegations’ plausibility, when I first wrote about this lawsuit on IPWatchdog, a Pepperdine graduate commented: “I went to Pepperdine, and I wondered if the show was based on Pepperdine, or using its facilities. It’s even the same colors – orange and blue. To me, it’s obviously a representation of Pepperdine’s trademark.”

But in this lawsuit, the court—as a consequence of the one-letter typo—altogether failed to view false endorsement as a viable basis to sidestep Rogers. That misstep led to full dismissal of the complaint without any acknowledgement or evaluation of the false endorsement allegations.

Implications for Trademark Rights

The traditional Rogers test provides that the defense does not apply if the plaintiff can prove explicit deception as to the “source or content” of the work. This dichotomy, which maintains explicit content deception—i.e., explicit false endorsement—as a separate basis to defeat Rogers, is essential to preserving the Rogers test in the wake of Jack Daniel’s v. VIP Products.

Under Jack Daniel’s, decided by the U.S. Supreme Court in 2024, the Rogers test cannot be invoked to begin with if the defendant used the accused mark “as a mark”—that is, to indicate the source of the creative work. If Rogers analysis now applies only to non-source-identifying uses, that necessarily means that explicit source deception no longer plays a role in Rogers analysis. That leaves explicit content deception as the only meaningful basis on which to defeat Rogers.

Grouping “content” together with “source” as the court did, thus removing explicit false endorsement as a viable exemption from First Amendment dismissal, would eliminate this entire species of Lanham Act claims. That, in turn, would essentially amount to a policy that unless a trademark is used to represent the source of the work—such as, in the case of Jack Daniel’s, on the tag of a creative parody toy—trademarks used as part of a creative work for an artistic purpose are per se non-actionable. In practice, this could undermine the product placement licensing industry and other clearance practices used to secure authorization to refer to trademarks as part of the substance of a creative work. Entertainment producers would likely welcome the change, but trademark owners would resist it.

As recently addressed by esteemed trademark professors Mark Lemley and Mark McKenna, there is some room for debate as to whether false endorsement is a type of confusion that merits penalization based on genuine harm to consumers. According to the professors, false endorsement liability may exceed the Lanham Act’s consumer protection purpose: because it primarily implicates consumer confusion about industry licensing norms, false endorsement may be only tangentially related to consumers’ motives for purchasing a product.

However, there is no dispute that the law at present recognizes these types of claims. It seems unlikely that the Pepperdine court intended to modify the established standard on a routine motion to dismiss. Notwithstanding, the court, by dismantling the very last thread of the Rogers test, highlights what little left there was of the test to begin with. Post-Jack Daniel’s, the Rogers test seems to be mutating into an automatic dismissal mechanism rather than a true litmus test to allow certain types of claims to survive. That is precisely what happened in the Pepperdine dispute, where the complaint was not permitted to proceed past the pleadings stage in order to test whether the concerns of explicit false endorsement might outweigh the First Amendment concerns.

As the case law in this area evolves, it will be interesting to see whether the Rogers test becomes reified to insulate explicit false endorsement from First Amendment dismissal, or whether false endorsement eventually becomes sacrificed in favor of a brightline rule that only source-identifying trademark uses in creative works are actionable.