Products and related trademarks commonly appear in various entertainment content, such as films and television programs. Oftentimes, owners of the products and trademarks are delighted to see their productions featured in entertainment content. Litigation can and does arise when a film or television program features a product or trademark in an unflattering manner without the authorization of the trademark owner. In general, the plaintiff alleges that use of its product in the entertainment program confuses the consumer to believe, erroneously, that the plaintiff sponsored or is affiliated with the program, and that such use allegedly harms the product’s mark or brand itself. Such claims rarely are successful. As a fundamental matter, the appearance of products in entertainment projects is commonplace and courts have held, routinely, that no such consumer confusion exists. Even if the plaintiff can establish potential consumer confusion, recent court decisions, relying on the Second Circuit’s landmark decision in the matter Rogers v. Grimaldi, have emphasized that the use of products and trademarks in entertainment projects without the owners’ permission will not give rise to liability if the creator establishes that such use is protected by the First Amendment.
Our article, “Making the Mark,” provides an overview of the general rule that the appearance of products in entertainment programs is so commonplace that no such consumer confusion exists. The article also examines the origin and application of a strong First Amendment defense for defendants, including in recent cases involving videogames and film.