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Preliminary Injunction Denied in Pepperdine Trademark Suit
By a MetNews Staff Writer
The U.S. District Court for the Central District of California yesterday denied a motion by Pepperdine University requesting a temporary restraining order against Netflix Inc. and Warner Bros. Entertainment Inc. relating to a show, set to premiere on the streaming service yesterday, which the plaintiff claims misappropriates the school’s trademarks and branding.
Pepperdine claims in its complaint, filed last week, that the “Running Point” comedy follows the life of an “ambitious protagonist appointed as president of a Los Angeles basketball team” and contends that the series misappropriates the university’s trademarked name, the Waves, as well as the school’s blue and orange colors. The school sought preliminary relief barring the release of any episodes without first editing all references to the “Waves.”
In yesterday’s order denying the motion, District Court Judge Cynthia Valenzuela said that where the allegedly infringing use of a trademark is part of an expressive work covered by the First Amendment, the trademark claim will only succeed if the use of the mark is not “artistically relevant” or “explicitly misleads” consumers as to the source of the work.
Plaintiff’s Burden
Finding that Pepperdine has not met its burden of establishing a likelihood of success on the merits, Valenzuela remarked:
“Defendants explain that the ‘Waves’ name ‘was chosen as a nod to the real-life Lakers, whose team name also alludes to a body of water.’…The name also evokes the Los Angeles area and the ‘Southern California “vibe,” associated with beaches, sun, surfing, and waves.’…This explanation is sufficient to provide that the use of the “Waves” name had at least some level of artistic relevance.”
She continued:
“Defendants also do not use the Waves mark in the series’ title, and include an express statement that the series is a fictional work….Ultimately, on this record, there is no evidence that any viewer would be misled regarding the source of the series.”
Pepperdine’s Response
Sean Burnett, Pepperdine’s senior vice president and chief marketing officer, responded to the ruling by saying:
“We do not believe Netflix and Warner Bros. can be permitted to take the Waves trademarks and colors we have used for almost 90 years to identify Pepperdine to instead identify the team that is the subject of their series. While we are disappointed with today’s ruling, we believe the University will ultimately prevail and prevent the continued unauthorized use of Pepperdine’s intellectual property in a way that misrepresents our institution.”
The university is represented by Andrei Iancu, Robert A. Sacks, and Emily Olsen of the Century City office of Sullivan & Cromwell LLP, as well as Aviv S. Halpern of the Palo Alto office. Also acting for the plaintiff are Daniel M. Cislo and Katherine M. Bond of Los Angeles-based Cislo & Thomas LLP.
The defendants are represented by Daniel M. Petrocelli, Matt Kline, and Amy R. Lucas of the Century City Office of O’Melveny & Myers LLP, as well as James D. Weinberger and Shelby P. Rokito of the New York firm Fross Zelnick Lehrman & Zissu P.C.
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