Empire Distribution Inc. v. Twentieth Century Fox Television, et al.

Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a)(1)(A), recognizes a cause of action for use of another’s trademark that “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” The Ninth Circuit held below, however, that the Lanham Act does not apply at all to the use of another’s trademark in an “expressive work” or its “promotion,” no matter how much confusion is likely to occur in the marketplace. The question presented is: Does an implied “expressive work” exception to the Lanham Act, 15 U.S.C. 1125(a)(1)(A), excuse the use of another’s trademark, including on directly competing goods and services, without regard to the likelihood of confusion among consumers?