School merchandise has long been a staple of campus life, with students, alumni, and fans all eager to show their allegiance through branded clothing, mugs, and other items. The demand for such products has created a lucrative market, with schools actively licensing their names and logos to control the supply. Recent developments have challenged this model, raising complex questions about trademark law, consumer perception, and the boundaries of unauthorized use.
One such challenge comes from Vintage Brand, a company that sells clothing and accessories featuring school names and logos without obtaining licenses. The company argues that consumers purchase its products to show support for a school, not to imply endorsement. It relies on three main defenses: many of the marks it uses are no longer protected, the logos are used for decorative purposes, and disclaimers are included to clarify that the schools have not authorized the products.
Schools, however, have taken a different stance. More than a dozen universities have filed infringement lawsuits against Vintage Brand, arguing that the use of their marks without permission creates consumer confusion and undermines their ability to control their brand.
Trademark law hinges on the concept of a “source identifier” - a mark that identifies the origin of a product and distinguishes it from competitors. Courts have grappled with how to determine whether a mark functions as a source identifier or merely as decoration. This distinction is crucial, as only source-identifying marks are eligible for trademark protection.
In 2023, U.S. District Judge Alan Albright ruled in favor of Baylor University, finding that the use of school symbols without authorization infringes on the institution’s trademark rights. The judge applied a “per se” test, which holds that if consumers associate a school’s symbols with the institution, unauthorized use is automatically infringing. A consent judgment followed, permanently banning Vintage Brand from using Baylor’s marks.
In contrast, Judge Matthew Brann, in a case brought by Penn State, rejected the per se approach. He emphasized that mere mental association between a symbol and a trademark is not enough for infringement. Instead, the court required a fact-based inquiry into whether consumers believed the trademark holder was the source, sponsor, or affiliated with the product.
Judge Br,ann also questioned whether consumer confusion arose from a mistaken belief that all use of a mark must be licensed. He noted that while data supports this belief, the legal standard for infringement is whether confusion is likely, not whether consumers understand its legal basis. This raises broader questions about how to assess consumer intent and the role of disclaimers in preventing confusion.
In the Penn State case, the jury found Vintage Brand willfully infringed on the university’s trademarks. The verdict, which awarded $28,000 in damages, sent a clear message: the jury believed Vintage, despite its disclaimers, intended to create confusion and imply an authorized relationship with Penn State.
Since the verdict, Penn State has sought a permanent injunction and attorneys’ fees, arguing the case is exceptional under the Lanham Act. Vintage Brand has opposed both motions and plans to appeal.
Despite differing approaches by the courts, both cases underscore a common theme: consumers expect some level of authorized connection between a trademark owner and the seller. The findings also suggest that disclaimers, while useful, are not enough to prevent confusion or mitigate intent to deceive.
As the legal battle continues, the outcome could shape how businesses navigate the murky waters of trademark law, particularly in university and sports markets. The stakes are high, and the implications for branding and consumer trust are significant.