From the Rogers case came the Rogers test (“the Test”), as did a circuit split, which is the subject of this Note. The Test, described in detail below, is a defense to trademark infringement, with trademark law being regulated by the Lanham Act of 1946. If a trademark is used in a manner that is claimed to be “artistically relevant,” defendants very likely will not face liability, based on the existing case law.  The Test has two prongs. Using and portraying an already-registered trademark (not one’s own) is protected unless (1) it has “no artistic relevance” to the underlying work, or (2) it explicitly misleads as to the source or content of the work. 

There appears to be two ways forward: either the property laws surrounding artificial intelligence become tighter and more transparent to the public, or the Rogers test will need to be, once and for all, addressed by the Supreme Court to define the limits—if any—of what it means for something to be “artistically relevant.” 

For purposes of this Note, “artificial intelligence” is defined as “the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.”  Artificial intelligence is often used as a type of automatic utility to make product selections (possessing capabilities such as maintaining artificial neural networks and hosting expert systems and robotics) rather than doing so via mere human cognition, which confuses the way a traditional trademark functions.

However, artificial intelligence is not limited to science fiction-style robots, and such technology has snuck into the everyday lives of consumers. This makes for an inquisitive study into who (or what) intellectual property rights belong to, and if secondary use of a trademark through artful creation is considered infringement under the Rogers test in commonplace technologies.