In the article, “Making the Mark” published by Los Angeles Lawyer
, partner Lee Brenner
discusses the claims that can arise when products and trademarks are used in entertainment programs without the rights holders’ permission. In general, the plaintiff alleges that use of its product in the entertainment program confuses the consumer to believe, erroneously, that the plaintiff sponsored or is affiliated with the program, and such use harms the mark itself. The article provides an overview of the general rule that the appearance of products in entertainment programs is so commonplace that no such consumer confusion exists. The article also examines the origin and application of a strong First Amendment defense for defendants, including in recent cases involving videogames and film.