Courts have long struggled with how to balance false association claims brought under the Lanham Act with the protections for speech under the First Amendment. The leading approach is the Rogers test, but this test comes in multiple forms with varying degrees of protection for speech. A substantial portion of the litigation raising this issue now involves video games, a medium that more so than others, likely needs the benefit of a clear rule that protects speech. The original version of the test is the simplest and the one most protective of speech. In 2013, the Ninth Circuit endorsed the original version of the Rogers test in unusually clear terms, yet in the face of conflicting decisions from the court of appeals, the district courts may still mistake the Ninth Circuit’s meaning. The Ninth Circuit may soon have the opportunity to clarify its meaning yet again. This article suggests the court does so, making clear that the original Rogers approach is indeed the law of at least the Ninth Circuit.
William Ford, Restoring Rogers: Video Games, False Association Claims, and the “Explicitly Misleading” Use of Trademarks, 16 J. Marshall Rev. Intell. Prop. L. 306 (2017)