On June 15, 2012, Judge Andrew Carter of the Southern District of New York granted the motion of defendant Warner Brothers Entertainment Inc. to dismiss a trademark complaint filed against it by the luxury-goods maker Louis Vuitton based on the appearance of an allegedly counterfeit Vuitton bag in the film The Hangover: Part II. The decision in Louis Vuitton Malletier S.A. v. Warner Brothers Entertainment, Inc., is a stark example of the increasing judicial skepticism toward efforts by trademark owners to use the rubric of the Lanham Act and related state laws to exercise control over the appearance of their branded products in expressive visual works such as films, television shows, or video games.
Building on established precedent, the decision rejected the notion that the First Amendment rights of content creators can be trumped merely because a "prop" used to convey an artistically relevant message is alleged to be a knockoff product. Moreover, the decision clarified that a trademark plaintiff must satisfy a heightened pleading standard for "confusion" in cases involving expressive works in order to overcome a First Amendment defense. As discussed below, resolution of these issues by the court helps to clarify and define the line between an infringing use of a mark intended to confuse or mislead consumers and the use of a mark that falls within the constitutionally protected right of content creators to engage in free and open expression by portraying the "real world" to their audience.