Court Applies Rogers Test Against Tiger King Trademark Claims

The Tiger King saga captivated audiences that binged the documentary following Oklahoma zookeeper and social media star, Joe Exotic, as he waged his war against rival Carole Baskin and the movement against keeping big cats captive.  But even after the audience explosion has waned, third party legal wrangling involving the show and Tiger King trademark rights continue. 

The Tiger King Trademark Saga 

In the latest chapter of litigation involving the Tiger King drama, a judge denied claims of trademark dilution and infringement.  In July 2020, Hollywood Weekly Magazine, LLC (“HWM”) and its founder, Prather Jackson, sued Netflix and affiliates claiming various counts of intellectual property infringement for the use of the phrase “Tiger King” in the Netflix documentary about Joe Exotic and Carole Baskin.  In particular, Plaintiffs specifically argued that they coined the phrase “The Tiger King” in 2013 and the use of such phrase as well as of the HWM magazine name and copyrighted materials within the Netflix documentary caused them harm.  

The Rogers Test and First Amendment Rights

In the court ruling, the judge found against Plaintiffs, dismissing the claims against Defendants.  Specifically, the court held that both parties agreed that there was extensive use of the Tiger King trademark in the “Joe Exotic Tiger King” documentary series.  The court applied the Rogers test (Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)) used for determining whether an expressive work runs afoul of the Lanham Act where “the public interest in avoiding consumer confusion outweighs the public interest in free expression.”  The use of another’s trademark in an expressive work will not violate the Lanham Act unless the use “has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless it explicitly misleads consumers as to the source or content of the work.”

The court reasoned that as there has been an explosion in sales of Tiger King merchandise and other related goods and services being used in connection with the mark, the use of the phrase in the artistic works meets the threshold of minimal relevance, a prong of the Rogers test.  Basically, the use of the mark had to only have some relevance to the documentary series to satisfy the artistic relevance prong – with a relevance of merely “above zero.”    

Not Misleading if Mere Use

The court also dismissed Plaintiffs’ claims of explicitly misleading/sponsorship.  Plaintiffs argued that the use of the marks in the documentary were misleading to consumers and making the public believe Plaintiffs were somehow sponsoring the documentary work. The court held that Plaintiffs were unable to show anything to demonstrate an explicit misrepresentation or misleading claim by Netflix.  As such, the court held that the statements at issue amounted to “mere use.”   

Key Takeaways Regarding the Latest Tiger King IP Infringement Case

The HWM and Jackson claims against Netflix for intellectual property infringement from use of “Tiger King” and other marks and copyrights were not successful due to:

• dismissal of trademark dilution and infringement claims;

• application of the Rogers test; and

• a finding the documentary use of the Tiger King mark is protected by the First Amendment.  

Related Story: Even the Tiger King Has to Answer to the Law

For more information on Trademark Litigation, see our Intellectual Property Litigation Services and Industry Focused Legal Solutions pages.

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