Lance Hara, f/k/a Vicky Vox v. Netflix, Inc., et al.

Los Angeles, California intellectual property lawyers represented the parties in a Lanham Act case.



This case presents a straightforward, but nonetheless novel, question of law: In light of the Supreme Court's

narrow decision in Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), does the Rogers test

apply to a trademark infringement claim involving an animated television series where the allegedly infringing mark was not used to designate the source or origin of the show? See Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). Given the fleeting use of Vicky Vox's ("Vox's”) image and likeness "solely to perform some other expressive function” on the Netflix show, Q-Force, the answer is yes. Jack Daniel's, 599 U.S. at 154.



Vox alleged that an animated version of her likeness appeared in a ten-second scene in the show as well as in the

official teaser and still image promoting the series. She sued for unfair competition and false endorsement under 15

U.S.C. § 1125, alleging that the unauthorized use of her image and likeness led viewers to believe that she endorsed

Q-Force.



Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), provides that when the challenged mark in an artistic work is used not to designate a work's source, but solely to perform some other expressive function, the Rogers test applies. Under the Rogers test, the Lanham Act does not apply to an expressive work unless the use of the trademark or other identifying material has no * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.H ARA V. N ETFLIX artistic relevance to the underlying work or explicitly misleads as to the source or the content of the work.



The defendants' alleged use of Vox's image and likeness in one episode of Q-Force and the related teaser and still image in no way suggested or identified Vox as a source or origin of the show. Accordingly, the Rogers test applied. Under the Rogers test, the use of Vox's likeness had artistic relevance to Q-Force, and there was no overt claim or explicit misstatement that Vox was the source of Q-Force. Vox therefore failed to satisfy either prong of the Rogers test.

The Rogers test applies and forecloses Vox’s claims under the Lanham Act.