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Lewis R. Clayton and Eric Alan Stone

Songs and paintings and all manner of expressive works often use other people’s trademarks as part of their expression. Janis Joplin implored the Lord to provide her a Mercedes Benz. Courts have grappled with when a trademark owner’s right to enforce its mark against misleading suggestions of origin “must give way to expressive speech protected by the First Amendment,” Caiz v. Roberts, No. CV 15-9044, 2019 WL 1755421 (C.D. Cal. April 17, 2019), as shown most recently in a series of cases from courts within the Ninth Circuit applying the two-prong test from Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989).

 

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