HBO's hit show The White Lotus featured a character wearing a Duke University T-shirt during a controversial moment, sparking a controversy that went beyond the storyline; it raised First Amendment and intellectual property questions. How might consumer surveys be used if this dispute left the screen and entered a courtroom?
Trademark Law in Television
A scene in the third season of HBO's hit series The White Lotus drew attention for its intensity and use of the logo of a prestigious US university. The character Timothy Ratliff (played by Jason Isaacs), depicted as a Duke graduate, appeared wearing a Duke University T-shirt during a scene involving contemplation of suicide.
The moment resonated widely with fans, and also with Duke University; Frank Tramble, Duke's vice president for communications, marketing, and public affairs, stated: "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." Tramble further emphasized that while Duke respects artistic expression, the portrayal "creates confusion and mistakenly suggests an endorsement or affiliation where none exists."
With more than 6.2 million viewers tuning in for the season finale, the impact of such an association is far from trivial. For trademark holders, moments like these can blur the lines between fair use and brand tarnishment.
The Rogers Test: IP and Expression
When intellectual property law clashes with the First Amendment protections for speech and expression, a controlling precedent applies: the Rogers v. Grimaldi decision (1989). This case established a test for evaluating trademark use in expressive works. The Rogers test protects creative works from trademark infringement claims if (1) the use of the mark has artistic relevance to the underlying work and (2) it is not explicitly misleading about the source or endorsement of the work.
The US Supreme Court's recent decision in Jack Daniel's Properties, Inc. v. VIP Products LLC (2023) further refined the boundaries of the Rogers defense by ruling that parody or expressive intent does not shield creators from lawsuits over allegedly unauthorized use of a mark. If Duke and HBO were to take the dispute over the scene from The White Lotus to court, these issues would arise again.
Consumer Surveys Measure Consumer Perception of Art
To help trademark holders understand how the public interprets artistic portrayals, consumer surveys provide insights into that perception, with or without litigation. If a dispute were to have arisen, attorneys might have employed two types of surveys to test legal theories:
- Dilution or tarnishment surveys, which could measure whether the use of Duke's trademark in a sensitive or controversial context diminished the mark's distinctiveness or associated it with negative ideas.
- Likelihood of confusion surveys, which assess whether viewers believe Duke was behind, authorized, endorsed, or was otherwise affiliated with The White Lotus or HBO.
Properly conducted consumer survey research can measure whether unauthorized use of a trademark dilutes or damages a brand, or whether viewers recognize it as artistic and independent. The White Lotus controversy underscores an ongoing challenge in intellectual property law: creative expression vs brand protection. Entertainment storylines and other media uses can blur these lines, but reliable consumer perception data can illuminate consumer understanding of the trademark’s use and address the market impact of that use.
IMS Consumer Perception Expertise
IMS Legal Strategies designs and conducts consumer surveys for trademark, false advertising, and dilution matters. Our experts provide methodologically rigorous and defensible data that support complex or novel legal arguments in court or at the negotiation table.
To explore how consumer perception research can strengthen your argument in a trademark or IP matter, contact IMS Legal Strategies today.
