NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 16 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BETTY’S FOUNDATION FOR THE No. 21-55553

ELIMINATION OF ALZHEIMERS

DISEASE, D.C. No. 8:20-cv-02146-CJC-ADS

Plaintiff-Appellant,

MEMORANDUM*

v.

TRINITY CHRISTIAN CENTER OF

SANTA ANA, INC., and TRINITY

BROADCASTING NETWORK, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted March 8, 2022 Pasadena, California

Before: FRIEDLAND and KOH, Circuit Judges, and KORMAN,** District Judge.

Betty’s Foundation for the Elimination of Alzheimer’s Disease (“Betty’s

Foundation”) appeals the district court’s dismissal of Betty’s Foundation’s Lanham

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Act and state law claims against Trinity Christian Center of Santa Ana, Inc. and

Trinity Broadcasting Network, Inc. (collectively, “Trinity”). We have jurisdiction

under 28 U.S.C. § 1291, and we review de novo the district court’s order of

dismissal under Federal Rule of Civil Procedure 12(b)(6), Brown v. Elec. Arts,

Inc., 724 F.3d 1235, 1240 (9th Cir. 2013).

We apply the test in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), to a

plaintiff’s Lanham Act claims when a defendant makes “a threshold legal showing

that its allegedly infringing use [of a trademark] is part of an expressive work

protected by the First Amendment.”1 Gordon v. Drape Creative, Inc., 909 F.3d

257, 264 (9th Cir. 2018). Contrary to Betty’s Foundation’s arguments, the Rogers

test applies to the instant case because Trinity’s alleged use of the mark is in the

title of an expressive work, Trinity’s television show, and related promotional

materials. See Twentieth Century Fox Television v. Empire Distrib., Inc., 875 F.3d

1192, 1196 (9th Cir. 2017).

Because Trinity has met its threshold legal showing, Betty’s Foundation has

the burden to show that it satisfies at least one prong of the Rogers test to have a

viable Lanham Act claim. See Gordon, 909 F.3d at 264-265 (explaining burden

1 Because Betty’s Foundation does not challenge the district court’s ruling that the Rogers test applies to state law claims, we “have no occasion to address whether the Rogers test applies to any state laws.” Twentieth Century Fox Television v. Empire Distrib., Inc., 875 F.3d 1192, 1196 n.1 (9th Cir. 2017).

2 framework). “Under the Rogers test, the trademark owner does not have an

actionable Lanham Act claim unless the use of the trademark is ‘either (1) not

artistically relevant to the underlying work or (2) explicitly misleads consumers as

to the source or content of the work.’ Neither of these prongs is easy to meet.” Dr.

Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443, 462 (9th Cir. 2020) (quoting

VIP Prods. LLC v. Jack Daniel’s Props., Inc., 953 F.3d 1170, 1174 (9th Cir.

2020)).

Betty’s Foundation advances no argument that it satisfies the first Rogers

prong. Nor does Betty’s Foundation satisfy the second Rogers prong, because the

operative complaint contains no factual allegations that Trinity made “an explicit

indication,” “overt claim,” or “explicit misstatement” about the source of the

television show. See id.

Our decision in Gordon does not compel a contrary result because the facts

of the instant case do not test the “outer limits” of Rogers. See Gordon, 909 F.3d at

268. Unlike in Gordon, Betty’s Foundation and Trinity use the mark in different

contexts, and Trinity added a substantial amount of artistic expression to its

television series beyond the mark. See id. at 269-71 (listing two additional factors

to consider under the second Rogers prong). Moreover, consumers do not expect

titles of expressive works to identify “the origin of the work.” Id. at 270. Thus,

considering “all the relevant facts and circumstances,” Trinity’s alleged use of

3 Betty’s Foundation’s trademark is not explicitly misleading under the second

Rogers prong. See ComicMix, 983 F.3d at 463 (quoting Gordon, 909 F.3d at 269).

Accordingly, the district court correctly dismissed Betty’s Foundation’s

Lanham Act and state law claims.

AFFIRMED.

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