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Night Logos. It's a play on words from the popular book,
movie, and television show, Friday Night
Lights, which depicts the ups-and-downs of a west Texas, high school football
team. It's also a reflection of high school athletics and intellectual property
rights. Many high school football teams wear logos that resemble the logos of popular universities,
and in these instances, there's a case to be made for trademark infringement.
The problem has been around for some time, and often,
enforcement is spotty. Some universities see it as a waste of time to police
high schools, many of which earn negligible merchandising income from infringing
logos. The other reason is public
relations, the David vs. Goliath perception, that big, cash-rich universities
shouldn't step on little, cash-strapped school districts. In the same vein,
would you, as a university, want to anger potential enrollees and their parents
by forcing them to ditch their beloved high school logo?
Despite a history of lax enforcement, some colleges are now
putting high schools on notice that logo infringement will not be tolerated.
The new vigilance has a two-fold cause: the ever increasing value of licensed college
logos and the greater television exposure given to high school athletics. Of
course, at the heart of it all is the potential for a weakened mark, and if
high schools are using unauthorized logos, there's the possibility of confusion
So, is this a problem worthy of enforcement or should
universities let high schools play-on?
In arguing against enforcement, one might argue against
confusion in the marketplace, underscoring the difference between a major
university and a high school. But is this argument based merely on the David
vs. Goliath model? What about large high schools with population numbers
rivaling small universities? What about well funded high schools that market
their logos as well as, if not better than, some universities?
As for dilution, blurring seems the most obvious of the dilution
types, but is there also the possibility of tarnishment? At a fundamental
level, there appears to be little harm in high schools copying university logos,
but what of the dangers in having a university logo in the hands of
adolescents? Whether or not there's actual tarnishment, a university, such as
the University of Notre Dame, might perceive reputational harm in having their
famous Fighting Irish logo associated with a high school scandal, such as
hazing or cheating or juvenile crime. But
see, Bd. of Regents v. KST
Elec., Ltd., 550 F. Supp. 2d 657 (W.D. Tex. 2008) [enhanced version available to lexis.com subscribers]
(rejecting the University of Texas' dilution claim because the University's
evidence failed to demonstrate the extremely high level of recognition
necessary to show "fame" under the Trademark Dilution Revision Act).
LaFrance on the Unlicensed Merchandising of University
In Bd. of Supervisors for La. State Univ. Agric. &
Mech. College v. Smack Apparel Co, 550 F.3d 465 (5th Cir. La. 2008), an apparel
company manufactured and sold t-shirts displaying university names, initials,
and color schemes. Four universities and . . . .
denied in trademark case involving university logo "SC" - Univ. of
S.C. v. Univ. of S. Cal., 367 Fed. Appx. 129 (Fed. Cir. 2010)
University of Southern California had opposed registration of the University of
South Carolina's mark, arguing, among other things, that the registration and
mark would create a likelihood of confusion with Southern California's
registration, which protected the letters "SC" in standard character
15 USCS § 1125. False designations of origin, false
descriptions, and dilution forbidden
James Wagner, Copycat
logos are pitting high schools and colleges in a trademark turf war, The Washington
Post (October 21, 2010), available at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/21/AR2010102106526.html
Chris Foreman, High
school sports logos run afoul of 'owners', Pittsburgh Tribune-Review (October
10, 2010), available at http://www.pittsburghlive.com/x/pittsburghtrib/news/s_703608.html
Matt Wixon, Colleges,
pros rarely cry foul when HS teams lift their logos, The Dallas Morning
News (November 4, 2010), available at
Adam Clair and Katie Dvorak, High school logo 'confusingly similar' to PSU Lion head, The Daily
Collegian (August 30, 2007), available at
Dave Weber, Seminole
school dodges trademark infringement bullet, Orlando Sentinel (February, 2 2010), available
Maybe rich colleges can simply volunteer to either pay or lend out creative talents to Highschools that use similar/identical logos to design a new unique logo for the highschools?