Episode 24: Unauthorized Trademark Use in Artistic Mediums (Part I)
The podcast discusses Online Editor Anthony Zangrillo’s Note: The Split on the Rogers v. Grimaldi Gridiron: An Analysis of Unauthorized Trademark Use in Artistic Mediums.1 Special Guest Ben Siders,2 an IP attorney at Lewis Rice in St. Louis, joins the podcast to speak about the unauthorized use of trademarks in films, TV and video games.
A former software engineer, Ben routinely counsels businesses, entrepreneurs, and startups on IP, technology licensing and compliance as well as how to develop and protect their IP assets. He also assists clients with licensing their technology and licensing third party technologies. Ben is also a co-author of the American Bar Association’s Legal Guide to Video Game Development and has published an article on board games in the American Bar Association’s Landslide journal on IP law. He is the secretary of the St. Louis Game Developer Cooperative, a member of the International Game Developer Association, and holds a patent on a geogaming technology for creating “parallel reality” games.
Movies, television programs, and video games often exploit trademarks within their content. For example, Louis Vuitton sued Warner Bros. over a knockoff bag used in a scene in the studio’s 2011 release “The Hangover: Part II.” In particular, various media often attempt to use the logos of professional sports teams within artistic works. Courts have utilized different methods to balance the constitutional protections of the First Amendment with the property interests granted to the owner of a trademark. Ultimately, many courts utilize the framework presented in the seminal Rogers v. Grimaldi decision. This test analyzes the artistic relevance of the trademark’s use in the allegedly infringing work, while also protecting against explicitly misleading uses. Currently, federal circuits apply the Rogers test inconsistently, particularly in the Second, Sixth, Seventh, and Ninth Circuits. This podcast focuses in on the feedback loop created by blurring out trademarks in films, when not legally required to do so. Performing this action entices studio gatekeepers to always clear trademarks before utilizing them, in effect, chilling the artistic vision of the director and/or producer.
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