When The First Amendment Intersects With The Lanham Act For Trademark Protections

Conflicts Between First Amendment and Trademark Protection

Traditionally, product or brand-placement within a television series or movie—think Spielberg's E.T. and Reese's Piecesâcandies—requires a license or other agreement with the brand (and often, payment of a license fee) to avoid legal issues arising out of trademark infringement. But that's not always the case. As Pepperdine and Duke University have learned in recent months, the intersection of the First Amendment with the Lanham Act is a completely different matter.

In February, just prior to the release of the Netflix series Running Point, Pepperdine University filed suit against Warner Bros. Entertainment and Netflix and asserting claims for trademark infringement, contributory trademark infringement, false designation of origin, dilution, and false advertising under the federal Lanham Act, as well as similar common-law and state law claims. The show, which features a fictitious basketball team known as