– Draeke Weseman, Weseman Law Office, PLLC
On Monday, the University of Oregon and The Ohio State University will play in college football’s first College Football Playoff championship game. DuetsBlog has previously covered the trademark issues surrounding BCS Properties’ attempt to register College Football Playoff as a trademark in connection with college football playoff games here. Even if College Football Playoff ultimately fails as a trademark, Monday’s championship game will be awash in trademarks and intellectual property. Consider this your DuetsBlog guide to the game.
UNIVERSITY OF OREGON
We’ll start with Oregon, and begin with a little history. In 1859, Congress required Oregon to set aside land for a state university as a condition for admittance into the Union. Oregon chose land in Eugene, and, in the mid-1870s, began building what is today the University of Oregon®, or Oregon®, or just UO®. Although all eyes will be on the Oregon Ducks’® football team on Monday night, Eugene may be better known to many as Track Town USA® thanks to the success of Oregon’s track team under Bill Bowerman in the 1960s and 70s. During that time Bill Bowerman introduced jogging to the American public, coached the legend Steve Prefontaine, met Phil Knight, and started Nike, Inc.
Nike has maintained a strong relationship with Oregon ever since, hiring grad Tinker Hatfield in the 80s to design Air Jordan shoes (but not the ones blogged about here) and grad Dan Weiden’s agency Weiden-Kennedy, to coin the tag line “Just Do It” while developing TV ads like “Bo Knows” to sell newly invented cross-training shoes (also designed by Tinker Hatfield.) Today, Nike designs not only Oregon’s football uniforms, but also the special uniforms for all four teams that played in the College Football Playoffs, branding them from head to toe, and even hands:
Back in the late 1800s, when Oregon was just getting its feet wet as a University, its students adopted the nickname “The Webfoots” as a tribute to ancestors that literally got their feet wet saving George Washington in the Revolutionary War. Inevitably, by the 1920s, a live white duck named “Puddles” began appearing as a mascot at sporting events. In the 1940s, Walt Disney learned that drawings of Puddles in student publications looked like Donald Duck. Oregon’s art director, Leo Harris, who happened to be friends with Walt Disney, reached a handshake deal to keep the mascot. Then, in 1966, Walt Disney died. Lawyers for Disney discovered that no written contract between Disney and Oregon existed and challenged Oregon’s rights to use Donald Duck as a mascot. (Sound familiar?) Allegedly, Disney agreed to negotiate a formal licensing deal for the mascot when an image of Walt Disney in an Oregon letterman jacket was produced.
(Walt Disney, far right, with Leo Harris and Puddles, center)
In March of 2010, possibly as a result of an unapproved appearance by Donald Duck in a student-made rap video, Disney and Oregon agreed to partially part ways. The new licensing deal put Oregon in control of the mascot’s appearances at events, like the Civil War, while leaving in place a royalty payment to Disney for use of Donald Duck in print.
THE OHIO STATE UNIVERSITY
The Ohio State University®, Ohio State®, or just OSU® also has its roots in an act of Congress. In 1862, Congress passed the Morrill Act, granting federal land to states for educational institutions that would teach agriculture, the mechanical arts, and military tactics (Lincoln was president and the real Civil War was happening). Thus, The Ohio State University began as the Ohio Agricultural and Mechanical College in 1870 (it changed its name in 1878).
Ohio State’s colors are Scarlet and Gray®, but they don’t stand for anything – in true trademark fashion they were chosen by three students in 1878 because they were aesthetically pleasing and distinct. If this is true today, it may help fight off intentional and unintentional copycats like the ones DuetsBlog covered here and here.
The nuts and the leaves of the Buckeye tree are used as important symbols for Ohio State.
In the 1960s, Ohio State adopted Brutus® as its mascot, unique for its time because it was a nut, not an animal. He isn’t owned by Disney, but does appear with Donald Duck in a Disney World commercial.
If you’ve ever watched the Buckeye’s football team, you’ve probably noticed some stickers adorning the player’s helmets. Remember, this is Ohio, not Colorado or Washington, and those leaves are the Buckeye leaves®.
The stickers have a cool story. In the ‘60s, around the same time Brutus was born, Ohio State coach Woody Hayes conceived the idea to motivate players with stickers shaped like Buckeye leaves, sort of a spin on gold stars, if you will. Players receive stickers for wins, individual plays, statistical achievements, and shared team unit accomplishments – some according to tradition and other times at the head coach’s discretion.
Another interesting tradition at Ohio State involves Gold Pants®. Every time Ohio State beats Michigan, the players become members of the “Gold Pants Club” and receive a gold pants charm. This tradition dates back to a 34-0 win over Michigan in 1934. At the start of the 1934 season, when asked if the team could beat Michigan, coach Francis Schmidt remarked that he didn’t see any reason why not because the Michigan players “put their pants on one leg at a time, same as everybody else.”
Like Oregon’s, Ohio State’s jersey is made by Nike, and maybe this bothers Adidas. In November, Ohio State and Adidas settled an opposition commenced by Adidas against three applications filed by Ohio State in 2010 to register its football jersey (U.S. Trademark App. Nos. 85116716, 85116758, and 85066291). In its notice of opposition, Adidas claimed the stripes on the jerseys would create a likelihood of confusion with its famous Three-Stripes mark. As part of the settlement, it appears Ohio State and Adidas agreed to allow the applications for the jerseys depicted in the first and second images below, in exchange for Ohio State’s abandonment of the application for the jersey depicted by the third image below.
In addition to the applications for its uniforms, Ohio State has a pending trademark application for the name of its coach, Urban Meyer (U.S. Trademark Application No. 86329914), who assigned his common rights of publicity to the school. This information was made public in a big victory in April against knock-off company Skreened, where several of the above cited trademark registrations and other common law rights came in very handy.
So, there you have it: some intellectual property stories to share between plays on Monday night. You might not know who the starting quarterback is for Ohio State, but at least you’ll know what the stickers on his helmet mean. Yes, you can be that guy or girl at the party!