Sinking the Rogers Test? What Pepperdine’s Lawsuit Could Mean for Hollywood

In this episode of The Briefing, Scott Hervey and Richard Buckley dive into Pepperdine University v. Netflix, a trademark showdown over the use of the name “Waves” in the Netflix series Running Point. After Pepperdine’s attempt to block the series’ release was denied under the Rogers test, the university is back—this time arguing that the Jack Daniel’s Supreme Court decision changes everything. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: What happens when a Christian university’s proud athletic legacy collides with the creative freedom of Hollywood? That’s the question at the heart of Pepperdine University versus Netflix, a trademark dispute centered around the name Waves. Pepperdine lost its initial attempt to block the release of Netflix basketball comedy ‘Running Point.’ Very funny television show. But the fight is far from over. Now the court must decide whether Netflix use of the Waves mark is protectable artistic expression or actionable infringement. And it all comes down to a legal test some thought was subtle law until the Supreme Court rocked the waters in Jack Daniels versus VIP Products. I’m Scott Hervey, a partner at Weintraub Tobin, and I’m joined today by my partner, Richard Buckley. We are going to unpack this battle over brand identity, free speech, and college sports on this episode of the Briefing. Richard, welcome back to The Briefing. Good to have you. Richard: It’s great to be here again. Scott: Yeah. Did you watch Running Point? Richard: I have not. Scott: Okay, well, you are missing out. You should watch it. It’s quite funny. Richard: I feel like I must now. Scott: All right, let’s get into this. So let’s start with the basics. What’s this case about, Richard? Richard: So Pepperdine’s athletic teams have been known as the Waves since 1937. Netflix and Warner Brothers released a scripted comedy series called Running Point, featuring a fictitious professional basketball team named the Los Angeles Waves. The university sued, claiming trademark infringement and false designation of origin under the Lanham act, among other things. Scott: Pepperdine raised several issues in the complaint. First, they argued that the fictional Los Angeles Waves team, which, by the way, is not a collegiate team. It’s a like an NBA league team, uses the word Waves with a strikingly similar font to Pepperdine’s registered marks. Pepperdine also contended that the colors used by the fictional team were similar to Pepperdine’s and that both marks were used in athletic context. Pepperdine specifically pointed out that an image in the Running Point trailer included a frame jersey with the number 37, which they believe references Pepperdine’s founding year of 1937. Coincidence? I don’t know. But perhaps most importantly, Pepperdine was concerned about reputational harm. They argued that the themes and Running Point, including excessive alcohol and substance use, sexual innuendos in imagery and foul language and other content, didn’t align with Pepperdine’s Christian values and would negatively impact the university’s reputation. Richard: So Pepperdine sought a temporary restraining order, a tro, to block the release of Running Point, which premiered on February 27, 2025. The university argued that the use of Waves, along with similar color schemes in a jersey number 37, would confuse viewers and damage Pepperdine’s reputation. As you previously mentioned, the court denied the TRO for finding that Pepperdine was unlikely to succeed on the merits of its trademark claims because the use of Waves fell under the Rogers test, which protects expressive works unless the use is irrelevant or is explicitly misleading. Scott: Right. We. We previously covered the court’s ruling on the tro, so we’re not going to delve into that too deeply. You can. We’ll include a link to that episode in the show notes here. So. So after the show aired, Pepperdine filed a First Amendment complaint to incorporate new allegations, including claims of widespread use of the Waves mark in marketing. For example, Pepperdine alleged and in the First Amendment complaint included pictures showing Netflix’s use of Waves on tickets for the series premiere. Pepperdine also alleged consumer confusion with regard to third-party sales of Wave merchandise linked to Running Point. Richard: Shortly after Pepperdine filed its First Amendment complaint, Netflix filed a motion to dismiss the first amended complaint based mainly on the argument that the Rogers test still applied and shielded them from liability because Waves, the use of waves, was part of an expressive work and it was not misleading. Scott: Right. And so that brings us here to Pepperdine’s opposition to Netflix’s motion to dismiss. All right, so Pepperdine, in their opposition, argues that Jack Daniels versus VIP products. That decision changed everything. In that case, the Supreme Court ruled that when a trademark is used as a source identifier, Rogers does not apply, even if the use has. Has expressive elements. Pepperdine claims that Netflix used Waves not just expressively, but as branding as a source identifier for the Running Point series. Pepperdine pointed to extensive use of the mark in the series and in marketing of the series, social media, posts, merchandise, and Netflix referring to itself as, quote, home of the Los Angeles Waves. Richard: And Pepperdine argues that that’s enough to knock Rogers out of play, thus triggering the traditional trademark analysis and the likelihood of confusion test under Jack Daniels. Scott: All right, so where does this leave us? So, Richard, what’s your take on how the court might rule? Richard: Hard to say. Pepperdine’s amended complaint is strong on its face. They’ve alleged that Netflix used the WAVES mark pervasively and commercially as a brand identifier, and that could persuade a court not to apply Rogers at this early stage. That said, it’s not a slam dunk. Netflix can argue credibly that Waves is part of the show’s world-building and that viewers aren’t confused about who made. Scott: The show right I agree with you, but I think my prediction here, my prediction is that the court denies the motion to dismiss. At this stage, Pepperdine just needs to plausibly allege source identifying use. And I think based on the use of the WAVES mark outside of the program, I think that Pepperdine may have done just that. Whether Pepperdine will ultimately win on likelihood of confusion, that’s a whole different question. Richard: So with regard to fan made unofficial Waves merchandise that can’t be pinned on Netflix, as you know, Scott, because you’re helping some of your clients with this very issue, that being counterfeit merchandise that includes marks and even images from programs all over sites like Etsy and redbubble. However, I just have to ask, why do you think Netflix printed tickets for the series premiere with the Waves mark on it? And relatedly, why would Mindy Kaling, one of the creators of the show, include as a tag on her Instagram page, home of the Los Angeles Waves this arguably a gift to Pepperdine? Scott: No. Oh, I totally agree with you. I mean, you’re the litigator. You tell me, how would you deal with this situation where you, you defeat, you defeat a tro. Temporary restraining order motion for a temporary restraining order, right? Where, where basically, you know, so goes to tro, usually, so goes the case, but the judge kind of left it open for, for Pepperdine to show use of that mark outside of the program. And, and, and here it is. Now. How do you, as a litigator, if you were handling this case, like how do you deal with that or how would you deal with that? Richard: I think as a general rule, when you have a favorable ruling on a TRO where there is a prediction that’s offered as to likelihood of success on the merits, I think that the, the general advice in all circumstances would be just, you know, hold serve, do, don’t do anything that would, you know, give anybody a chance to revisit these arguments. New ammunition, you know, revisit previously made arguments, just stay cool is generally what I would advise in a situation like that. Scott: Yeah, but I guess according to the timeline in the First Amendment complaint, remember the First Amendment complaint was filed and then Netflix filed its, well, network file this motion to dismiss. Richard: The TRO prior. Scott: Yeah, it was prior. So it’s interesting, right? Netflix, Pepperdine may not have had this additional evidence. They may not have had this evidence of Netflix’s use of the Waves outside of its use in the television program. So let’s. Okay, that, this is an interesting question. Had, had Pepperdigm brought its TRO after filing its first amended complaint with evidence of use of waves outside of the creative context of the program and arguably showing use as a source identifier, where do you, how do you think the court might have ruled? What do you think might have happened? Richard: That’s a great question. It’s very difficult to say, but I think that there would have been some distinction and analysis of, you know, expressive, artistically protected conduct and commercial conduct, which in its opposition to the motion to dismiss, Pepperdine draws a distinction between, you know, know, those two types of conduct. Assuming it had made that argument before and that the cop, that the court had bought into it, then they maybe get a TRO on the commercial activity and, you know, they move forward with their lawsuit in the face of pleading challenges. Scott: Y...