The Southern District of California adopted the "alternative avenues of communication" test in Dr. The court concluded that the defendants could have found many alternative ways to "comment on 'sexuality in athletics' without infringing plaintiff’s trademark" thus, a preliminary injunction did not infringe the defendants' First Amendment rights. The Dallas Cowboys Cheerleaders court enjoined the use of a promotional poster for the pornographic film "Debbie Does Dallas." The poster portrayed actress Bambi Woods in an outfit similar to the Dallas Cowboys Cheerleaders' uniform, and contained the legends "Starring Ex Dallas Cowgirl Cheerleader Bambi Woods" and "You'll do more than cheer for this X Dallas Cheerleader." Id. Under the first test, an artist may be enjoined from utilizing a trademark for expressive purposes if "alternative avenues of communication" might have conveyed the artist's message. Existence of "Alternative Avenues of Communication" Three tests have been articulated for determining whether limited use of trademark for an expressive purpose is permissible. However, the use of trademarks for expressive purposes, in a work of art or literature, or in a parodic work, may receive special protection under the First Amendment, requiring trademark holders to address freedom of expression concerns in addition to the traditional Polaroid public confusion factors.
Bantam Doubleday Dell Publishing Group, Inc., 808 F. "The factors are: the strength of the prior owner's mark, the similarity between the two marks, the competitive proximity of the products, the likelihood that the prior user will bridge the gap, actual confusion, the defendant's good faith, the quality of the defendant's product, and the sophistication of the buyers." Girl Scouts of the United States v. Polarad Electronics Corp., 287 F.2d 492 (1961), the Second Circuit advanced eight factors to help decide whether the ordinary purchaser is likely to be misled.
To determine whether a trademark has been infringed, courts must evaluate whether the use of the trademark by a nonprotected party will result in public confusion. FIRST AMENDMENT PROTECTION FOR TRADEMARK USE
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