Duke University is making headlines this week after releasing a statement distancing itself from HBO’s hit show, The White Lotus. The click-garnering clash between the school and the show stems from a particularly dark couple of scenes, in which actor Jason Isaacs’ character contemplates suicide – while wearing a t-shirt boldly emblazoned with the stylized Duke name. Duke University’s Vice President for Communications, Marketing, and Public Affairs, Frank Tramble, released a statement following the airing of the episode, saying, “The White Lotus not only uses our brand without permission, but in our view, uses it on imagery that is troubling, does not reflect our values or who we are, and simply goes too far.”
“Duke appreciates artistic expression and creative storytelling, but characters prominently wearing apparel bearing Duke’s federally registered trademarks creates confusion and mistakenly suggests an endorsement or affiliation where none exists,” Tramble further stated on the heels of the March 23 episode of the Mike White-created show. The legal minds reading will have already noticed that Tramble touches on a couple of key terms of art in his statement, stating that the use of the Duke mark in the show creates consumer confusion, the crux of a trademark infringement claim, and suggests an endorsement or affiliation, another infringement-centric concept.
As of now, the parties’ clash is limited to the court of public opinion and will almost certainly stay there. While Duke may not like the prominent placement of a t-shirt bearing its name in the scenes at issue, there is probably not much the school can do to stop it (and not just because the episode already aired).
One need not look than any number of cases – including Rogers v. Grimaldi, in which the U.S. Court of Appeals for the Second Circuit held that a trademark can be used in an expressive work (such as a televisions series) without permission if: the use has artistic relevance to the underlying work and the use doesn’t explicitly mislead consumers about the source or content – to see why. In layman’s terms: The t-shirt is relevant to the underlying story line (Tim went to Duke, he is from Durham, North Carolina, etc.) and no one thinks that Duke endorsed the show and/or its use of the shirt. (This remains true even in light of the heightened standard elucidated by the Supreme Court in the Jack Daniel’s Properties, Inc. v. VIP Products LLC case.)
One legal tenet that Tramble did not mention: The Streisand Effect.
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