Can You Name Your Song “Nike Dunks”?

The first track on Frank Ocean’s 2016 album Blonde is called “Nikes.”

The song explores themes of money, materialism, and fame, and desire - and the lyrics reference Nike shoes.

From a legal perspective, the song raises an interesting question: How was Frank Ocean allowed to use Nike’s trademark in the title of his song?

The answer likely lies in a legal doctrine that, for decades, protected artists and creators when they used brand names in the titles of expressive works.

It’s called the "Rogers test."

What Is the Rogers Test?

The Rogers test comes from a 1989 case, Rogers v. Grimaldi. The test has been used to protect artistic expression under the First Amendment, particularly when that expression uses someone else’s trademark.

Here’s how it works.

You can likely use a trademark in the title of your creative work if:

(a) the mark has some artistic relevance to the work, and

(b) the name doesn’t explicitly mislead people into thinking the brand is involved.

This test sets a low bar that prevents trademark owners from shutting down creative expression just because their name appears in a song, film, book, or art title.

Why Frank Ocean's “Nikes” Passes the Test

Under this framework, Frank Ocean’s use of the title “Nikes” is a good example of what’s allowed:

• The lyrics refer directly to Nike shoes, but also use the Nike brand as a symbol of wealth and identity.

• There’s no suggestion that Nike sponsored, approved, or collaborated on the song.

Under the Rogers test, artists have long had the freedom to reference well-known brands in creative titles, without needing permission, and without fear of infringement claims.

But the Law Is Changing...Maybe.

In 2023, the U.S. Supreme Court decided Jack Daniel’s Properties, Inc. v. VIP Products, and the case introduced significant doubt about how far the Rogers test can go.

To summarize, the Court ruled that Rogers does not apply when a trademark is being used “as a mark” - meaning, as a "source identifier" or brand name for your own product.

While the decision was narrow, it opened the door for lower courts to pull back on Rogers, especially in cases where the title of the work might be considered a "source identifier."

In other words: things are a little unclear right now.

Courts may no longer automatically apply the Rogers test to expressive titles that reference trademarks. Instead, courts may move toward a stricter standard and apply a “likelihood of confusion” analysis. That could make it harder for artists to use brand names in expressive titles.

So, What?

Ultimately, if you’re thinking about naming your next album “CeraVe Moisturizing Cream" - it's best to speak with an IP lawyer in your area first.

Need some advice? We’re here to help. Book a consultation: hello@outputlaw.com.

This is not legal advice.