One of the most venomous snakes alive, the black mamba warns off encroachment with a fearsome hiss and the ominous flaring of its two cobra-like neck flaps.
In the 9th Circuit (as well as the 2nd, 5th, 6
th, and 11th Circuits), the test for determining whether the use of a third-party trademark in an expressive work (i.e., use of a brand within a movie, TV series, video game, etc., including as part of the title of an expressive work) is the 2nd Circuit’s test from the 1989 case of
Rogers v. Grimaldi. The
Mattel, Inc. v. MCA Records (better known as the “Barbie Girl” case). Under the
Rogers test, the use of a third-party mark in an expressive work does not violate the Lanham Act “unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.” As is evident, this is very different from the multifactor test adopted in