Penn State Trademark Suit

[TwiceHorn 31,471]

So, a couple of years back, PSU sued this outfit, https://vintagebrand.com/, for trademark infringement.  Vintage's business model seems to avoid licensing by using outdated "logo marks" that still may use word marks like "Penn State" or PSU or whatever.

Vintage actually defended this on the ground that trademarks are not property interests per se, but only so long as the trademark prevents consumer confusion as to the source or sponsorship of goods.  Most of this type of infringer can't afford or commit to defending this kind of suit.

Clearly, no one is confused that Penn State, or any other university, is in the clothing business.  Sponsorship or association is a bit more murky, less so if the clothing is shitty and unlicensed (as opposed to shitty and licensed. e.g. 287 Longhorn gear).  This has ground my gears for a long time.

Anyway, the judge bought Vintage's arguments to a degree, but still sent it to a jury, who found for Pedo State.  Vintage seems sure to appeal and may change the game a bit for trademark licensing by entities that aren't in the core business that they're licensing to.

[NWBuck 8,566]

As long as no one tries to take this away from us...

[Dahobbs 17,534]

3 hours ago, TwiceHorn said:

Clearly, no one is confused that Penn State, or any other university, is in the clothing business.  

We aren't? I thought that was like half the reason we had the co-op. 

[Celery Man 20,949]

Yeah I'm confused by that as well - what does it mean to be "in the clothing business"? My assumption is that every Longhorn I see on a piece of clothing sold... not on temu or whatever resulted in some licensing money going back to the school.  My assumption is that that is a big business, and the revenue for the school is not insignificant. How is UT or Penn State not in the clothing business?

[tx 3 putt 76,958]

they printed up ‘culture of rape’ tshirts ?

[Firemans4Horn 18,049]

4 minutes ago, tx 3 putt said:

they printed up ‘culture of rape’ tshirts ?

Baylor has that trademarked. 

[TwiceHorn 31,471]

3 hours ago, Celery Man said:

Yeah I'm confused by that as well - what does it mean to be "in the clothing business"? My assumption is that every Longhorn I see on a piece of clothing sold... not on temu or whatever resulted in some licensing money going back to the school.  My assumption is that that is a big business, and the revenue for the school is not insignificant. How is UT or Penn State not in the clothing business?

Because neither Penn State nor UT has ever sold an item of clothing.  That's not and never has been a product or service of any educational institution, unless it's a school of weaving or something.

They're in the licensing business and it's huge.

Trademarks are intended to help consumers identify the SOURCE of goods.  Trademark infringement is established by showing a likelihood of confusion as to the source of products or services.  They originated as the "hallmarks" applied by metalsmiths and others to identify the origin of their goods before people were literate.

People buy college stuff because it has the college logo or name on it, not because they believe the college sells quality gear.  They don't much give a shit where it comes from.

You can't have a trademark in a generic term because that term serves a purpose in the language.  Similarly, you can't have a trademark in descriptive terms.  Nor can you have a trademark in something that is "utilitarian" functional or purely ornamental.  University names and logos are closer to the latter category than anything else.

The Co-Op doesn't make and sell clothing, it sells clothing made and sold to them by someone else, duly licensed.

Now, a bunch of us educated sports geeks know about the licensing deals and that sales of authorized goods kick back to the University; and maybe that gives us an incentive to want to buy duly licensed stuff.  But that's getting pretty far afield from the original purpose of trademarks:  to give people a shorthand way of knowing they're buying quality, or at least familiarity.

To change the law on this would upset a lot of apple carts and destroy huge revenue streams.  It should have never developed this way.

Edited 9 hours ago by TwiceHorn

[TwiceHorn 31,471]

Ironically, I suppose, the law first went wrong in the early 70s right here in Texas, but over Boston Bruins patches.  https://casetext.com/case/boston-pro-hockey-assn-v-dallas-cap-e#p1013

The district court there got it right.

[TwiceHorn 31,471]

Kind of a similar problem presented here on a much smaller scale. https://fordauthority.com/2024/11/unauthorized-ford-bronco-conversions-prompt-the-blue-oval-to-sue/

They're imitating the look of OG Broncos, using 6G running gear.  No one is confused.  Post-sale confusion has been held irrelevant in countless conventional trademark cases.

[Celery Man 20,949]

1 hour ago, TwiceHorn said:

Because neither Penn State nor UT has ever sold an item of clothing.  That's not and never has been a product or service of any educational institution, unless it's a school of weaving or something.

They're in the licensing business and it's huge.

Trademarks are intended to help consumers identify the SOURCE of goods.  Trademark infringement is established by showing a likelihood of confusion as to the source of products or services.  They originated as the "hallmarks" applied by metalsmiths and others to identify the origin of their goods before people were literate.

People buy college stuff because it has the college logo or name on it, not because they believe the college sells quality gear.  They don't much give a shit where it comes from.

You can't have a trademark in a generic term because that term serves a purpose in the language.  Similarly, you can't have a trademark in descriptive terms.  Nor can you have a trademark in something that is "utilitarian" functional or purely ornamental.  University names and logos are closer to the latter category than anything else.

The Co-Op doesn't make and sell clothing, it sells clothing made and sold to them by someone else, duly licensed.

Now, a bunch of us educated sports geeks know about the licensing deals and that sales of authorized goods kick back to the University; and maybe that gives us an incentive to want to buy duly licensed stuff.  But that's getting pretty far afield from the original purpose of trademarks:  to give people a shorthand way of knowing they're buying quality, or at least familiarity.

To change the law on this would upset a lot of apple carts and destroy huge revenue streams.  It should have never developed this way.

does the licensing business run on something different than the concept of the trademark? I guess intelllectual property? Is brand not that, and are the words and slogans and logos and etc associated with the brand not... that? I guess, if the idea that trademark is meant to identify SOURCE OF GOODS means that it doesn't protect the value of the brand of an institution being applied to clothes and sold, then wouldn't that have enormous ramifications outside of the realm peddling t shirts for pederasts?

[TwiceHorn 31,471]

19 minutes ago, Celery Man said:

does the licensing business run on something different than the concept of the trademark? I guess intelllectual property? Is brand not that, and are the words and slogans and logos and etc associated with the brand not... that? I guess, if the idea that trademark is meant to identify SOURCE OF GOODS means that it doesn't protect the value of the brand of an institution being applied to clothes and sold, then wouldn't that have enormous ramifications outside of the realm peddling t shirts for pederasts?

No, it's only trademark.

Our other IP properties, patents and copyrights, are premised on two things:  a quid pro quo of disclosing/publishing innovations and artistic works in return for a limited-term monopoly; and incentivizing the production of and investment in those things by grant of the monopoly.  

Patents and copyrights are provided for in the Constitution.  As a result, any legal regime in this country that protects rights similarly is preempted.  Quite a few laws (boat hull design protections) have fallen to this concept.  It also poses a limitation on trademark law.

The trademark owner gives little or nothing of value in return for the trademark rights. It should not have a property right apart from the right to stop consumer confusion resulting from infringement.

 

Edited 8 hours ago by TwiceHorn

[Celery Man 20,949]

2 minutes ago, TwiceHorn said:

No, it's only trademark.

Our other IP properties, patents and copyrights, are premised on two things:  a quid pro quo of disclosing/publishing innovations and artistic works in return for a limited-term monopoly; and incentivizing the production of and investment in those things by grant of the monopoly.

The trademark owner gives little or nothing of value in return for the trademark rights. It should not have a property right apart from the right to stop consumer confusion resulting from infringement.

So, I played in a band for a lot of years. We wrote and recorded music, which was ostensibly our business along with live performances. We’d get $500-$1k/night in our two main cities but we could only really play there once a month or two. We’d spend say 12 grand recording an album and another 3 on manufacturing a thousand or two copies of the CDs which we’d sell for $12, and I’m not going to do the math but it doesn’t work out. We sold t shirts that cost us a couple bucks to make for $15-20 and that’s how we actually paid for everything.

 

Is the idea because we weren’t in the clothing business, someone else could just make shirts with our logo and name and whatever on them and sell them and keep all the money? I get why we don’t want people to just call dibs on everything but if you… create the value of a brand I don’t get why someone should be able to just take that and take your business?

[TwiceHorn 31,471]

14 minutes ago, Celery Man said:

So, I played in a band for a lot of years. We wrote and recorded music, which was ostensibly our business along with live performances. We’d get $500-$1k/night in our two main cities but we could only really play there once a month or two. We’d spend say 12 grand recording an album and another 3 on manufacturing a thousand or two copies of the CDs which we’d sell for $12, and I’m not going to do the math but it doesn’t work out. We sold t shirts that cost us a couple bucks to make for $15-20 and that’s how we actually paid for everything.

 

Is the idea because we weren’t in the clothing business, someone else could just make shirts with our logo and name and whatever on them and sell them and keep all the money? I get why we don’t want people to just call dibs on everything but if you… create the value of a brand I don’t get why someone should be able to just take that and take your business?

Well, you actually were in the clothing business. 

And, your logos and artwork would be subject of copyright.

But, lets say you licensed your band name/logo to, I dunno, a software company  . . .  or an educational institution . . . . it starts to get kind of fishy.

Trademarks aren't really intended to make a business money, they're intended to stop a business from losing money through free-riders.

Edited 8 hours ago by TwiceHorn

[Celery Man 20,949]

3 minutes ago, TwiceHorn said:

Well, you actually were in the clothing business.

What if we got bigger and started licensing out the clothes, and making more on performance royalties?

what if I went out and started selling white t-shirts with the Ford logo on it, or.. Arnold&Porter or whatever?

[Celery Man 20,949]

brb opening a storefront selling Donald Trump branded foam mattresses

[TwiceHorn 31,471]

1 minute ago, Celery Man said:

brb opening a storefront selling Donald Trump branded foam mattresses

Do it! 

Trademark licensing is kind of sus, too.  Originally you couldn't do it because the goodwill the trademark represents and protects is yours and yours alone.  In another legal/doctrinal error, licensing is permitted if you exercise quality control over the licensed goods.  That originally meant that you insured they were to the same standard as those you sold.  Now it means you have some words about it in the license agreement that nobody pays any attention to unless it becomes a convenient excuse to terminate the license agreement.

[jimmyjazz 45,953]

5 minutes ago, TwiceHorn said:

In another legal/doctrinal error, licensing is permitted if you exercise quality control over the licensed goods.

You're still talking about trademarks, right?  I have a hard time seeing how that would be enforceable in the patent/copyright world.

[TwiceHorn 31,471]

7 minutes ago, jimmyjazz said:

You're still talking about trademarks, right?  I have a hard time seeing how that would be enforceable in the patent/copyright world.

Only trademarks, because of their unique status.  Patents and copyrights are affirmative property rights that can be freely licensed.

You have to actually enforce trademarks or you will lose them because if they are wholesale infringed, they stop preventing consumer confusion.

Failure to enforce patents or copyrights has no negative effect on the patent or copyright itself, because they are actual property rights, while trademarks only resemble property rights.

Edited 7 hours ago by TwiceHorn

[SL Xpress 7,513]

One of the great joys in life I receive is knowing Texas is paid money for every piece of official merchandise with an upside down Horns logo sold to an OU or A&M fan.

I don't want to live in a world where that goes away.