-Wes Anderson, Attorney

I’ve come across yet another college-hoops related trademark dispute — but what’s even more interesting is the way the AP covered the story. It’s a reminder that we IP lawyers can and must dispel any public confusion between the different forms of intellectual property.

Shaka Smart, the longtime basketball head coach at Virginia Commonwealth University, recently accepted an offer to be the head coach of the University of Texas Longhorns. Smart is known for employing a fast-paced style of defense known as “HAVOC” that uses a full-court press in an attempt to force opponents into making mistakes.

Smart has used the HAVOC style to great effect, as VCU reached the NCAA Final Four in 2011 and made every NCAA Tournament since, and VCU has become synonymous with the word HAVOC, even displaying “#HAVOC” on the seats in their basketball arena.


The dispute itself is this: once Smart elected to leave VCU for Texas, the Board of Regents at Texas filed two federal trademark applications to capitalize on the HAVOC mark: HOUSE OF HAVOC and HORNS HAVOC. It seems VCU isn’t willing to let HAVOC leave Richmond along with Coach Smart, so a dispute arose between the universities. For its part, VCU has two state trademark registration in Virginia for the HAVOC mark, but did not have any federal trademark applications at the time. There must have been an undisclosed settlement agreement between the parties, as Texas has since expressly abandoned its applications, and VCU filed four new trademark applications containing the “HAVOC” wording.

Plenty of news outlets have scooped DuetsBlog this story, and it seems Coach Smart intends to continue to use HAVOC going forward. What actually brought me to the keyboard was the AP’s article on the dispute, which seems to confuse the distinction between trademark and copyright. It has been republished in various publications across the country, including the Washington Post.

For an IP lawyer, the cringing begins with the headline “Smart says ‘Havoc’ style a way of life, not just a copyright” (emphasis added). The confusion between copyright and trademark gets worse from there:

The University of Texas may have bowed out of the legal fight with Virginia Commonwealth over the copyright of “Havoc.”

Don’t expect new Longhorns coach Shaka Smart to shy away from the coaching style that got him there.

Smart on Monday called a recent copyright tussle between Texas and VCU “comical.”

“Havoc isn’t a copyright. It’s not a brand. It’s a way of playing. At VCU it became a way of life of how we did things,” Smart said.

Now, journalists these days are very busy indeed, and it’s absurd to suggest that an article written on deadline can’t go to press until an IP lawyer gets final cut. Perhaps the AP reporter was thrown off by Smart’s own use of “copyright” in his above quote. But it’s abundantly clear that this is a trademark issue. A trademark is an indicator of source for goods or services — it’s generally synonymous with a “brand” or a “calling card.” Interestingly, Coach Smart suggests that “HAVOC” is not a brand but merely a “way of playing,” suggesting that the term is just a generic term for a particular style of basketball.

On the other hand, copyright refers to the various legal rights that extend to “original works of authorship” such as “literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations.” In other words, Coach Smart’s instructional video detailing the schemes of his “HAVOC” defense is protected via copyright against others who, for example, sell bootleg copies of the DVD or create “derivative works” based on the video.

So perhaps this will serve as a guide to future reporters covering trademark disputes — as they say, if we can help just one person, we’ve done our job.