Roger test

8 febrero, 2023
rogers test
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The Rogers test is the most applied test for protecting free speech. It is commonly used in trademark law and derives its authority from the First Amendment of the U.S. Constitution.

Where did the Rogers Test come from?

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The Rogers test originated from the case of Rogers vs. Grimaldi in 1989. The plaintiff was the performer Ginger Rogers against the producers and distributors of the film «Ginger and Fred» for creating a false impression of her involvement in the production. She claimed a violation of the Lanham Act.

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What is the
Lanham Act?

The Lanham Act is the main federal trademark statute in the United States. It regulates trademark infringement, trademark dilution and false advertising, amongst other activities.

What was the result of the Rogers vs. Grimaldi case?
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Ginger Rogers presented survey evidence that showed 43% of those exposed to the film’s title associated it with her. The defendants argued that the First Amendment protected the film as a work of artistic expression, and that the title was intended as a symbol of hope during a challenging time, and the character was not meant to portray or resemble Ginger Rogers.

The court ruled in favor of the defendants, finding that the film was a work of artistic expression, not a commercial product, an therefore not subject to the Lanham Act.

The court used the Rogers test, which states that the use of a third-party mark in an expressive work does not violate the Lanham Act:

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“Unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title misleads as to the source or the content of the work.”

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Controversy of the Rogers test
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Can artistic relevance be evaluated and decided objectively?

The Supreme Court has yet to issue a ruling on the balance between trademark rights and free expression.