The new Netflix series Running Point stars Kate Hudson as president of a fictional pro basketball team, the Los Angeles Waves. And the Pepperdine Waves have a problem with it.
Attorneys for Pepperdine University in Malibu have filed a lawsuit against the streaming service and Warner Bros. Entertainment arguing they have taken valuable intellectual property from the school and infringed on its trademark ahead of the show’s premiere today. Attorneys for the University claim the fictional team’s branding is too similar to its own, and that it uses the same blue and orange team colors and mascot. They argue this will create consumer confusion and falsely suggest a link between Running Point and the university.
There’s an added layer to Pepperdine’s argument. The school, a Christian university, isn’t happy with details from the show they say don’t align with their values. Noting examples of substance use and profanity in the show’s trailer that go against the school’s code of conduct, attorneys argue they’re misrepresentations of Pepperdines marks in connection with topics wholly inconsistent with its values and will harm its reputation.
From top: Scenes from Running Point; Pepperdine University branding [Photos: Kat Marcinowski/Netflix 2024 (top), Pepperdine University (bottom)]
Litigating fiction vs. real life
At the heart of the dispute is whether a work of fiction can use names from real life. Courts have historically resolved litigation between First Amendment freedoms and trademark infringement via the Rogers test, named after actress Ginger Rogers, who sued over a film called Ginger and Fred that depicted fictional performers seemingly inspired by Rogers and her on-screen partner Fred Astaire.
A 1989 ruling in the case found that use of a celebrity’s name in the title of an expressive work is fine if it doesn’t inaccurately claim that a celebrity sponsors or endorses the work and isn’t explicitly misleading. Applied to the Pepperdine suit, the Rogers test might find the use of the Waves team name is fine for Netflix and Warner Bros. since the show doesn’t imply a connection to or endorsement from the university, and the storyline has nothing to do with an elite, private college in Malibu.
I am no fan of these types of lawsuits because I dont think consumers will be confused in a way that damages Pepperdine, Kevin Greene, a law professor at Southwestern Law School in Los Angeles who specializes in entertainment and intellectual property law, tells Fast Company. He says several years ago, a case like Pepperdine’s “probably wouldn’t go anywhere,” but a 2023 Supreme Court infringement case ruling potentially threw the limits of the Rogers test into question. In the case, Jack Daniel’s alleged a dog toy made in the shape of its whiskey bottle infringed on its trademark. The court ruled in favor of the liquor company.
Blue waves in California? Netflix says it’s not so notable
Attorneys for Netflix wrote in an opposition filing that the series “has nothing to do with universities or college sports, and never mentions or alludes to Pepperdine. They say the show was in fact written with Jeanie Buss, daughter of the late Lakers owner Jerry Buss, in mind. Pointing to other Southern California teams that also have wave mascots, including a hockey club, cricket club, and flag football club, the attorneys say “hundreds of wave-related marks exist.” The Waves team name, according to Netflix, is instead a nod to the Lakers.
The Waves name evokes the LA area in which the fictional team plays, they wrote. In naming the ‘LA Waves,’ the creators did not believe it would cause confusion, as there is no major pro sports team with the name.
As for the similar blue-and-orange color palettes for the real-life and fictional teams, attorneys for Netflix lean on color theory to defend the show’s choices. Waves are blue in real life, so the idea of a blue wave is common, they wrote, and since orange is at the other end of the color wheel, it complements and contrasts blue.
A court will now weigh in on the Waves fate, and considering the unsettled nature of the Rogers test, whatever they decided could have a ripple effect.
