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DID A SINGLE LETTER KILL PEPPERDINE’S TRADEMARK CASE AGAINST NETFLIX?

Here is What Firms Need to Know.

"In Of v. Or, the Case of the Single Letter Killing"
CrossBeamIP - Trademark Street Smarts (2026 0515)
  • Overview

  • A recent federal court decision dismissing Pepperdine University’s trademark claims against Netflix underscores a point that trademark practitioners cannot afford to overlook in expressive-work cases: precision in the governing standard matters. The court’s repeated use of “source OF the content” instead of “source OR content” (emphasis added) may have narrowed the Rogers inquiry in a way that materially favored the defendant. That is not a harmless stylistic choice: one is a conjunction, the other a preposition. Instead, it goes to the structure of the analysis itself. The ruling turns on a single-letter difference in how the judge quoted the governing legal standard. That letter may matter more than almost anything else the court said.

  • Why the Decision Matters

  • The dispute arose from Netflix’s series, Running Point, which includes a fictional basketball team called the Los Angeles Waves. Pepperdine, whose athletic teams also use the Waves name, sued before the series premiered, alleging trademark infringement and related claims. The court dismissed the case under the Rogers framework, but the phrasing it used has drawn attention because it appears to conflate two distinct and different concepts.

  • That distinction is important. Trademark law does not stop at source confusion, and courts should not treat source, sponsorship, endorsement, and content confusion as interchangeable concepts. When a court collapses those ideas, it risks turning a nuanced First Amendment balance into an overly defendant-friendly shortcut.

  • The Legal Problem

  • The Rogers test has long been the doctrinal vehicle for balancing trademark claims against expressive use. Under the traditional formulation, the use of a mark is protected unless it lacks artistic relevance or explicitly misleads consumers as to the work's source or content. The problem in the Pepperdine v. Netflix ruling is not that the court invoked Rogers, but rather, the court’s wording may have narrowed the second prong beyond what the doctrine permits. The difference is significant. By collapsing "source" and "content" into a single concept, the court narrowed the test, making it nearly impossible for a trademark owner to prevail. A formulation that asks only whether consumers believed Pepperdine produced the series rather than Netflix (of course, they did not; case dismissed) effectively strips away the broader inquiry into endorsement or affiliation. That is a significant doctrinal shift, not a trivial typo. False endorsement is a distinct type of confusion with its own legal recognition under the Lanham Act. The court's formulation essentially excluded it from the analysis.

  • Broader Implications

  • Firms counseling brand owners on trademark enforcement need to understand two things.

  • First, the Rogers test is not settled law. Courts have applied it inconsistently for decades. The Supreme Court addressed it in 2023 in the Jack Daniel's "Bad Spaniels" case, narrowing its scope but leaving significant questions open. The Pepperdine appeal, with the Ninth Circuit notice of appeal due May 15, 2026, could push those questions further.

  • Second, the case raises a fundamental question that is not limited to entertainment clients: when a mark appears in a cultural product, who bears the burden of showing confusion? Brand owners who license their names, mascots, or marks for commercial tie-ins are particularly exposed. If the Rogers defense is applied broadly and with a compressed standard, enforcement becomes significantly harder.

  • For firms advising clients with marks in consumer-facing industries, this is not an abstract development. It is a signal to review how clearance opinions address First Amendment defenses and what the current circuit landscape looks like before any enforcement action is filed.

  • This case should prompt firms to reexamine their approach to trademark enforcement in media, entertainment, and other expressive contexts. The Supreme Court’s decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC confirmed that Rogers is not a universal shield, but the lower courts continue to wrestle with where the line should be drawn.

  • For brand owners, the message is clear: the closer a matter gets to expressive content, the more important it becomes to build the record around actual confusion, endorsement theories, commercial context, and the specific way the mark is used. Courts are not applying a single uniform standard, and counsel should not assume they will.

  • Counsel Takeaway

  • The Ninth Circuit appeal is the immediate pressure point. If the court corrects the typo and reinstates the claim, the underlying merits of the false endorsement claim in entertainment contexts will receive a proper hearing. If the appeal is dismissed or the panel sidesteps the issue, the narrowed Rogers formulation could quietly become the operative standard in the circuit for creative work cases. Either outcome is worth tracking closely.

  • Trademark owners and their advisors should treat this decision as a warning, not a footnote. If a court can reframe the legal standard with a single word (or even a single letter), then careful pleading, focused evidentiary development, and strategic framing of the confusion theory become essential from day one.

  • In practical terms, firms should:

  • • Distinguish source confusion from endorsement and affiliation confusion;
  • • Analyze whether the challenged use is genuinely expressive or commercially leveraged;
  • • Preserve arguments that a mark is being used in a way that goes beyond artistic reference; and
  • • Track appellate developments closely, especially in jurisdictions where Rogers remains influential.

  • Bottom Line

  • The Pepperdine v. Netflix ruling is a reminder that small textual differences can produce large doctrinal consequences. For trademark counsel, the lesson is not merely to cite the right test, but to insist that courts apply it correctly. In a landscape where expressive-use defenses continue to evolve, that level of precision is not optional. It is the difference between preserving a viable claim and losing the case at the threshold.

  • References • Pepperdine University press release on the lawsuit against Netflix
  • • Reuters reporting on the dismissal
  • • IP Watch Dog: Legal commentary on the wording issue
  • • IP Law Group: Overview of the district court’s application of Rogers
  • • Justia: Rogers v. Grimaldi (2d Cir. 1989)
  • • Justia: Supreme Court decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC (599 U.S. 140 (2023))

  • DISCLAIMER: CrossBeamIP's articles are for general informational purposes only and do not constitute legal advice.
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