Overview:
HBO’s hit series The White Lotus included a T-shirt with Duke University’s trademarked logo, worn during a highly emotional moment. How might consumer surveys be used to protect trademarks and brands in the face of potential negative associations?
IP, Art, and the First Amendment
Pop culture and intellectual property law frequently collide, and in Season 3 of the HBO series The White Lotus, the collision included a T-shirt and a mental health crisis. The White Lotus is a critically acclaimed series in which one or more characters die, but you do not know who, and suspense builds throughout the season. Its 2025 season finale garnered a major audience, with 6.2 million tuning in on its release. With an audience of this magnitude, trademarks are not unnoticed.
That’s especially true in a scene that provoked a strong reaction from Duke University. A character named Timothy Ratliff (Jason Isaacs), a Duke graduate, was shown wearing a Duke University T-shirt during a scene in which he contemplates suicide with a gun to his head. The scene was jarring to many, especially those affiliated with Duke–and a representative of the university spoke out about the scene: “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.” Frank Tramble, Duke’s vice president for communications, marketing, and public affairs, said that “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.”
Trademark and Tarnishment Tension
Protection for The White Lotus and HBO might hinge on the Rogers test, a legal standard established in the 1989 Rogers v. Grimaldi case. In that case, Ginger Rogers sued the producers of the film Ginger and Fred, which was not about her and her longtime dance partner Fred Astaire, but about fictional Italian dancers who were nicknamed “Fred and Ginger” by the Italian public. Rogers alleged trademark infringement and false endorsement under the Lanham Act. The district court ruled, and the Second Circuit agreed, that the First Amendment protected the filmmaker from trademark infringement.
This ruling created the Rogers test, which says the use of someone else’s trademark is permissible if it has artistic relevance and is not misleading about the source of the work. The Rogers test was an issue in the U.S. Supreme Court’s recent decision in Jack Daniels v. VIP Products, which limited the scope of the protection for creative works.
Survey Use, Rogers, and Jack Daniels
Although Duke hasn’t sued, it did use the attention created by its dust-up with The White Lotus to spark dialogue around suicide prevention and awareness. Given the Rogers test, it could be that the First Amendment would protect The White Lotus and HBO in the event of a lawsuit. However, this is not to say that Duke has no interest here. Trademark holders like Duke have an interest in ensuring that their marks are not associated with people or ideas that make the mark or its owner look bad. So, if Duke were to decide to sue, how might lawyers use consumer surveys to make their cases?
One way could be to measure the likelihood of dilution caused by the use of Duke’s mark. This type of survey would measure the extent to which the use of the mark has tarnished Duke’s brand. Because Tramble also suggested that the use of the Duke T-shirt on The White Lotus might have confused or misled viewers about whether Duke endorses or is affiliated with the show, surveys could also measure whether consumers thought Duke was involved in the making of The White Lotus, or that Duke endorsed the episode. The results of these surveys could help lawyers for either side prove–or disprove–their cases.
Spoiler Alert?
If you are involved in a trademark dispute and require reliable survey research, contact MMR Strategy Group.