The classic blue and orange, the timeless “Waves” name and the iconic number 37. These were once solely associated with Pepperdine University.
Now, Pepperdine’s name, image and likeness are alleged to be used without the university’s permission in a new Netflix and Warner Brothers Entertainment show, “Running Point.”
The university is suing both Netflix and Warner Bros. over potentially damaging implications and trademark infringement, according to Pepperdine.
“They’ve [Pepperdine] raised a few legal arguments in their complaint. They have nine counts,” Kristin Kosinki, an adjunct law professor at Caruso Law School, said. “The main counts would be trademark infringement, and they allege that the use of the name ‘Waves’ and certain other colors and the number 37 are confusingly similar to Pepperdine’s protected rights.”
The Gist of the Case
The official “Running Point” trailer released Jan. 30. The trailer showcased many values that directly contradict Pepperdine’s Christian values, such as drug and alcohol use, nudity and explicit content.
On Feb. 27, Netflix and Warner Bros. released “Running Point,” a fictional show about the Los Angeles Waves, a professional basketball team in the Los Angeles area.
The show is supposed to be an homage to Jeanie Buss, the owner of the Los Angeles Lakers. According to Netflix, Buss was a producer on the show and a real-life inspiration for a character, Isla Gordon.
A trailer for the show was released Jan. 30, and from the jump, viewers noticed a striking resemblance to the Pepperdine Waves. From the name, school colors and the number 37—which represents Pepperdine’s founding year of 1937— all of which Pepperdine has common trademark rights on, it became too much of a coincidence to let go, according to the complaint.
Did nobody at Netflix think to check whether someone (anyone!) already held a trademark on that particular WAVES logo in blue and orange? https://t.co/QciYms51qh
— ghost of george pepperdine (@Mal_Hibou) January 30, 2025
Pepperdine filed a formal complaint against the companies Jan. 30 in the U.S. District Court for the Central District of California. The goal is “to prevent further use of Pepperdine’s trademarks, as well as damages for the infringement and harm caused by the misappropriation of the university’s brand,” according to the official complaint.
Sean Burnett, Pepperdine’s senior vice president and chief marketing officer, has been working on the case, which closely relates to Pepperdine’s trademarks. He said since the school’s founding, Pepperdine has established itself as a Christian institution committed to both academics and athletics.
“Given this flagrant disregard for our intellectual property and the damage to our institutional identity, together with Netflix’s and Warner Bros.’ continued refusal to resolve Pepperdine’s concerns, we believe it necessary to seek court intervention,” Burnett wrote in a Pepperdine press release.
Case Details
Besides the name, logo, colors and number 37, one of the other details of the case is how this show can cause consumer confusion, falsely affiliating Pepperdine and the show as one.
This is particularly damaging to Pepperdine, as the university’s Christian values go against many of the themes showcased in the show, such as explicit content, substance use, nudity and profanity, according to the complaint.
“The other main claim is Trademark Dilution by tarnishment,” Kozinski said. “Meaning that use of a mark can tarnish the mark owner’s reputation.”
Prior to the complaint, Pepperdine contacted Netflix and Warner Bros. through several means, namely phone calls and emails, which were followed up by cease-and-desist letters. Yet, Pepperdine was never met with a response, leaving the institution with “no choice but to protect its name, trademarks and reputation in court,” according to the complaint.
Pepperdine filed a request for a temporary restraining order against Netflix and Warner Bros. in the courts, however, that request was denied, and the case will proceed on its regular course, according to Pepperdine.
“Those standards are very hard to prove,” Kozinski said. “[Specifically], the trademark infringement and dilution, and so it’s kind of not surprising that it was denied on this kind of emergency type motion.”
Kozinkie went on to say that Pepperdine’s claims are still standing and can still be addressed. The hurdle with this complaint is the background facts: it’s a television show, and the use of the trademark was for expressive purposes.
A similar case, Rogers v. Grimaldi, addressed this issue in the late 80s, Kozinski said.
“Out of this case came the idea that trademarks are permitted for expressive purposes,” Kozinski said. “However, if it is an expressive purpose, [and] if the trademark is explicitly misleading as to the source or content of the usage, then it can be prohibited. You’ll see that is at issue here with respect to the infringement claim.”
Kozinski said the biggest aspect of this defense is Pepperdine proving the mark was famous at the time of the complaint and the university has used the mark for several years.
She believes this part will be somewhat manageable to prove for Pepperdine.
“They do have a nationwide or even an international reputation, so it’s possible that they will able to meet this kind of high hurdle in a dilution claim in terms of fame, and then they would just have to show the reputational disadvantage,” Kozinski said.
Netflix and Warner Bros. have a path, however, and can utilize the explicit content to their advantage as a possible defense, arguing they were utilizing Pepperdine’s trademark under transformative work protections.
Transformative work protections allow for the creation of new works that build upon existing copyrighted material but are so different in purpose and expression that they are considered new and original, potentially avoiding copyright infringement, according to the Foundry Law Group.
“There are strong protections in terms of speech and the ability to use a mark for expressive purposes,” Kozonski said. “However, if it is explicitly misleading, like if Pepperdine were able to show confusion, that could be considered evidence to establish that [it] is explicitly misleading, then that kind of protection for the use would not apply.”
Kosinski said these types of cases typically get settled before they are seen by a judge, but there is a world where, in a trademark dispute, the party can still be allowed to use the mark but with certain restrictions or guidelines that are acceptable.
“There could be a requirement that, if they are permitted to continue to use the name ‘Waves,’ the color’s blue and orange and the number 37, that perhaps they would need to clarify that they are in no way related to the university or not endorsed by them,” Kosinski said.
Future Implications
As stated in the official complaint, “this registration [trademark] is for education and entertainment services, namely,… arranging and conducting athletic events and tournaments, exhibitions, conferences, live performances and festivals, in class 41.'”
Pepperdine argues the marks used by the show are too similar to the already trademarked logo and name “Waves” that it cannot be marked as a coincidence. Couple this with the show’s setting, Los Angeles, the sport, basketball, the emphasis on the number 37 and the trailer utilizing the Malibu scenery, that Netflix and Warner Bros. were trying to “capitalize on [Pepperdine’s] brand,” according to the complaint.
Kozinski believes Netflix and Warner Bros. have a good shot at claiming they are not explicitly misleading consumers but rather that they’re using it to resemble a team similar to the Lakers.
However, Pepperdine already had a counterpoint ready for this potential argument, arguing the series does not use any Lakers colors or branding.
Instead, Netflix and Warner Bros. opted to “appropriate the intellectual property of another Los Angeles team and take Pepperdine’s name, trademarks, colors and other identifying characteristics and associate them with their purportedly fictitious team,” according to the complaint.
Furthermore, from a consumer standpoint, “Running Point” is meant to attract basketball fans, sports fans and overall sports media consumers. Pepperdine hopes to prevent marketing and merchandise production down the line.
They reasonably believe any merchandise related to athletics wear or other apparel containing the “Waves” mark is likely, growing consumer confusion about the source of origin of the products, according to the complaint.
Pepperdine also used the official Student Code of Conduct in their complaint, linking the use of illegal drugs and alcohol to a violation of the policy. This is especially important since the university is an alcohol- and drug-free campus.
“This will additionally harm Pepperdine’s ability to recruit students, athletes, and faculty and pursue its overall mission,” according to the complaint.
In the end, Kosinski said this case is important for similar disputes in the future. In fact, universities have already been the subject of trademark disputes, most recently at the Pennsylvania State University, where third parties sold t-shirts bearing the school’s trademarks.
“If they are required to make some changes to their show, I think it could impact studios in their idea of clearing names or usage of names, and colors and things that somehow pertain to products,” Kosinski said.
On the other hand, if this case is not settled before going to the courts and Pepperdine loses, it could discourage universities from taking legal action in the future. But Kosinski thinks it will not stop universities from protecting their brand.
“It may discourage them, but I don’t think it will stop them from trying to enforce your marks in trademark law; your rights can be lost if you do not enforce them,” Kosinski said.
The future of this case remains uncertain, and it is still an ongoing, pending matter, Burnett said. The outcomes of the case are not in any emergency motion, Kosinski said, and she believes there are still many issues that need to be fleshed out and addressed before a decision is final.
“Those [issues] will be addressed as the court and the parties have more time to do that,” Kosinski said.
___________________
Follow the Graphic on X: @PeppGraphic
Contact Justin Rodriguez via email: justin.rodriguez@pepperdine.edu
