The Courts have been able to develop internal mechanisms to address inconsistencies in trademark law.

The need to artistically discuss and present famous marks has led courts to develop different schemes to balance the competing interests of the artist and mark holder. While inconsistencies exist between the circuits, modern courts have adopted several “internal mechanisms to address issues of free expression [in trademark infringement and unfair competition claims].” This Note recognizes the Rogers test as the most equitable solution, but this Section also explores other methods of granting First Amendment protections in the trademark realm. Some courts have gravitated to an alternative avenues approach, analyzing whether there is a way to comment on a trademark without infringing on the mark. Other courts restrict their analysis to likelihood of confusion test alone. Additionally, some courts have adopted the transformative use test from right of publicity precedent. In Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinemas, Ltd., the plaintiff sued for trademark infringement when the Dallas Cowboys Cheerleaders service mark and uniform were used in a sexually explicit film, “Debbie Does Dallas.” The defendants argued for an extension of the fair use doctrine in copyright law to the trademark context. However, the Dallas Cowboys court found that the fair use doctrine was inapplicable to trademark claims. Conversely, in L.L. Bean, Inc. v. Drake Publishers, Inc., the court refused to apply the Lanham Act to noncommercial speech. This approach has a basis in the Lanham Act’s “use in commerce” requirement. Yet recent court interpretations of the “use in commerce” standard have rendered its application “beyond recognition.” While commercial speech should do “no more than propose a commercial transaction,” mixed artistic and commercial speech reside in a hybrid area of First Amendment protection. In effect, some courts have found a use in commerce where the plaintiff’s sales have been affected or the plaintiff can prove the defendant acted with the intent to injure the plaintiff. However, a website that promotes a movie, while expanding upon the cinematically created universe, may fall in a protected area of artistic speech. Disregarding the confusion among commercial and noncommercial speech, the U.S. Court of Appeals for the Second Circuit found the use in commerce approach inadequate in protecting the “public against flagrant deception.” Instead, the Second Circuit found it necessary for courts to strike a balance between the “public interest in avoiding consumer confusion [and] the public interest in free expression.” Parsing the difference between commercial and expressive uses becomes quite challenging in practice. Product placement is a common occurrence in popular films and television shows, but sometimes its inclusion can be vital to plot and characterization. For example, the Netflix series Daredevil uses a Fordham Law sweatshirt to change audience perceptions of a cynical district attorney. On the other end of the commercial-expressive spectrum, the blockbuster film Batman v Superman: Dawn of Justice includes a blatant commercial for Turkish Airlines that does not add any relevant artistic value to the film. Oliver Stone’s World Trade Center falls somewhere in the middle of the spectrum: Stone’s final cut included “the shadow of American Airlines Flight 11 pass[ing] across a Zoolander billboard as it plummet[ed] toward the North Tower.” While Stone considered this a veiled attack at “launching such a silly movie in the direct wake of an American tragedy,” many saw Zoolander’s inclusion as an advertisement because Paramount released both movies. As these examples suggest, directors utilize marks for artistic relevance and social messages in unclear ways that may not always be apparent to judges. Ambiguous, creative expression creates a subjective standard that forces courts to weigh the artistic views of the creator, audience, parties to a lawsuit, and even the judges themselves. Some courts have chosen to rely on a descriptive or nominative fair use defense in cases in which the unauthorized use has resulted in a likelihood of confusion. Under descriptive fair use, an artist may use a mark in a non-trademark descriptive category. To avoid a constitutional question, some courts have chosen to drudge through the nominative fair use defense. Nominative fair use protects a referential use that strictly identifies a mark owner or an owner’s product or services. In these cases, there is “no descriptive substitute . . . [as] many goods and services are effectively identifiable only by their trademarks.”