Applying the Rogers test: A step too far?

06-07-2022

Muireann Bolger

Applying the Rogers test: A step too far?

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US courts have for decades applied the test to safeguard expressive works, but debate is raging over its scope and potential danger to trademarks. Muireann Bolger reports.

More than three decades ago, silver screen legend Ginger Rogers unwittingly gave her name to a landmark legal doctrine aimed at balancing trademark rights and free speech rights when it comes to ‘expressive works’.

Now, the Rogers test has led to a chasm in opinion over its application in trademark and copyright ligation with some, including the International Trademark Association (INTA), arguing that the courts have extended its boundary too widely to the detriment of rights owners.

Others hold that the courts haven’t gone far enough in applying the test to ensure freedom of expression under the First Amendment.


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