Congratulations to Stanford University’s Women’s Volleyball Team, winning the NCAA DI National Championship this past weekend in Minneapolis’ Target Center, defeating Nebraska in Set 5:

The competition was incredible, a real seesaw battle, Stanford winning Set 1 (28-26), Nebraska Set 2 (25-22), Stanford Set 3 (25-16), Nebraska Set 4 (25-15), setting up the Set 5 tiebreaker.

Even from our elevated vantage point, it was a challenge to ignore Stanford’s wild band, erratic cheerleaders, and bizarre dancing tree, during the many breaks in the action.

The Stanford Tree, not in the University’s official logo and seal, instead the spastic and gyrating Tree mascot, is simply “a member of the band” — as the University has no “official” mascot.

 

As the Sets progressed, an interesting pattern emerged, but not related to the random, spontaneous, and irrreverent motions and defiant gestures of the merry band of cheerleaders and Tree mascot. Any choreography appeared impossible to script.

No, the pattern I noticed was that each of the first 4 Sets was won by the team that had its back to the band, in other words, turned 180 degrees away from the Stanford Tree.

 

 

In contrast, the losers through Set 4, always faced the Tree, in defeat, coincidence, I think not.

The teams switched sides at the close of each Set. During Set 5, with its back to the Tree, Stanford was up 8-7 at the half, then switched sides again to face the Tree, but somehow was able prevail, in the end, while facing the Tree, winning the 5th and final Set: 15-12.

So, with all this turning away from the Tree mascot, positioning the team to win a National Championship on the one hand, and disavowing the Tree mascot on the other hand, specifically rejecting it as not the University’s mascot, I’m left wondering, who owns it?

In other words, clearly there is intellectual property wrapped up in the Tree mascot costume, I’m seeing both trademark and copyright at work here, but really, who owns it?

Put yet another way, who should Reese’s call for a co-branding opportunity to have the Tree mascot appear on packaging for these little gems, or perhaps, the gems themselves?

Can the University automatically own the intellectual property in an “unofficial” mascot? What are the legal distinctions, if any, between official and unofficial mascots?

For what it’s worth, disavowing the Tree, and its unofficial status, apparently hasn’t prevented the University’s payment of NCAA fines against Stanford when the Tree is especially unruly.

At Stanford, it appears that the student selected by the band to perform as the Tree for the academic year, wears the costume created by his or her predecessor from the previous year.

As to copyright, do you suppose there is a work for hire arrangement in place? So, who would you call to license the IP associated with the Tree? Here is a list of the apparent creators.

It’s fall, and you know what that means: football season! For many, this means a return to the couch each weekend to spectate America’s most-watched sport. But the popularity of doing so appears to be in decline. This shift isn’t only affecting the NFL, but also college football as well, as ticket sales continue to plummet. Increasingly among my own family and friends, it seems as if everyone is more interested in playing their fantasy leagues than watching reality unfold before them. Which is why, one would think, that leagues and other football organizations would want to promote discussion about football, rather than hinder it.

Credit: Geek.com

But football organizations are cracking down on, rather than encouraging, use of familiar football names and phrases. Some have questioned, for example, the NFL’s bully-like tactics in aggressively protecting the “Superbowl” name. The annual “big game” is so well-known and such a major event that it’s almost impossible not to use its actual name. Yet, the NFL persists, enforcing more than just its famous name, drawing the ire of commentators each year.

Such tactics appear to have inspired a recent filing by the Heisman Trophy Trust against “HeismanWatch.com,” for trademark and copyright infringement. The Heisman Trophy Trust, the complaint says, is the owner of a slew of federal trademark and service mark registrations related to the Heisman Trophy, “one of the most distinguished, prestigious, and recognized awards in all of sports, and perhaps the most famous of all individual awards in football.” The award is given to the most outstanding collegiate football player, usually a quarterback or running back, each year. You might recognize the trophy by its distinctive “stiff-arm” maneuver captured in bronze:

Credit: The Ringer

Defendant HeismanWatch.com is a website that offers information, analysis, and podcasts about the Heisman trophy award. It is known for its “one-of-a-kind regression model that processes simulated Heisman votes,” to predict in advance who will win the Heisman each year. It reportedly correctly predicted the most recent winner, Baker Mayfield.

The Heisman Trophy Trust, apparently, does not appreciate HeismanWatch.com’s analysis and attention. It alleges that the website is deliberately attempting to free ride on the fame and notoriety of the Heisman Trophy marks, and it says that consumers are likely to believe there is a connection between the website and the actual trophy organization. Of course, the fact that HeismanWatch.com exists at all belies any such connection; the Trophy selection is secretive, but the website helps fans read the field and guess who will win next.

Time will tell whether the Heisman Trophy Trust can prevail against a news reporting and commentary organization like HeismanWatch.com, but it’s not unprecedented. The Academy Awards sued “OscarWatch.com” over a decade ago, prompting the website to change its name to “Awards Daily.” One cannot help but think that HeismanWatch.com has an incredibly strong nominative use defense, though. Under nominative use doctrine, another person can use the trademark of another if:

  1. the thing identified by the trademark (here, a trophy) cannot be readily identified any other way;
  2. the mark is used only as much as is necessary for that identification; and
  3. the use does not suggest sponsorship or endorsement.

The nominative use defense protects free speech and against the need to use “absurd turns of phrase” to avoid liability.

Credit: Wikipedia

It’s difficult to imagine a viable substitute to the name “Heisman,” given the trophy’s actual name–and namesake. What alternatives are there to HeismanWatch.com that do not include the surname? One commentator  offered an idea:

BestOffensivePlayerWithAGreatPRCampaignOnAVerySuccessfulTeamWatch.com.

Of course, this is absurd. And generic alternatives would fail to adequately describe what the website does (e.g., OutstandingCollegiateFootballPlayerWatch.com). One also doesn’t have to look much farther than a simple Google search to find that the media regularly uses “Heisman Watch” as a phrase to discuss anticipation about the next awardee. Even ESPN has a section called “Heisman Watch.” This kind of ubiquity shows the obvious necessity of using the surname. The common use of the phrase also suggests there is a very low likelihood that collegiate football fans are confusing the website–or any other reporting source–with the actual trophy organization. These are hallmarks of fair use.

But setting aside the legal defenses, one has to wonder if organizations such as the Heisman Trophy Trust, NCAA, and NFL ought to relax a little, and encourage the kind of use presented by sites like HeismanWatch.com. These fan centers generate excitement about, and interest in, football. That’s something football desperately needs more of lately.

I’m counting down the minutes to leaving my office later today to begin my favorite weekend of the year – the first weekend of the NCAA Tournament!  Even though my bubble was bursted on Selection Sunday – my team didn’t make it this year – I am always thrilled by the drama of tourney time and watching unpaid athletes play their hearts out hoping to bask in their one shining moment.  Incidentally, not a single team from Wisconsin made the tournament?  When was the last time that ever happened?  To take that even a step further, when was the last time not a single team from Minnesota, Iowa, or Wisconsin was in the tournament?  That must be a rarity.

There have always been a number of trademark issues surrounding the tournament – whether it’s a team’s name or mascot, the rights of a student-athlete, or using NCAA marks in any advertisement.

I’ll just get this well-worn recommendation out of the way – MARCH MADNESS, unless you’re a paid sponsor of the NCAA, don’t use it.  Not on an ad.  Not on a beer-themed bracket, like this one from last year (and I didn’t find one yet for this year on the site).  Not even as MARKDOWN MADNESS for something as seemingly unrelated to basketball tournaments as automobile dealership services or MUNCH MADNESS for providing information about restaurants; restaurant reviews; and an online tournament allowing people to rank restaurants.  (Psst…the NCAA even owns the mark MUNCH MADNESS, after it was transferred from a NY Times entity).

Unless you’re an official NCAA bracket game, you may even want to avoid using the word BRACKET in advertisements during this time.  Yes, the NCAA recently challenged a filing for DON’T LET ONE TEAM BUST YOUR BRACKET only on the basis of their alleged continuous use of “images of brackets, and marks consisting of or referring to the term BRACKET, in commerce in connection with entertainment services, and related promotional and sponsorship services.”  After two years, the applicant withdrew the application.

Since the NCAA purchased the trademark registrations, and associated rights, to MARCH MADNESS in 2010 (yes, can you believe DuetsBlog has been around longer than that?) purportedly for about $17 million, the NCAA has taken legal action against more than a dozen other marks, like MARCH WAGNESS, and likely many others through demand letters and discussions.

Aside from not using the NCAA’s marks and purchasing rights to protect your marks, there are a couple other important trademark considerations that the NCAA tourney tips off:

Meddle with unitary marks with caution (and preferably not at all). Despite all they hoopla (haha) about MARCH MADNESS, the NCAA filed an application for MARCH TO THE MADNESS, inserting two small but critical words into the well-known MARCH MADNESS mark.  It’s a clever play on the mark, but in some circumstances could ultimately could serve to weaken the strength of MARCH MADNESS.

– Employment contracts can impact trademark rights.  A CBS Sports reporter and online columnist filed an application for THIS IS MARCH. for apparel.  Employment agreements – as well as legal precedence with respect to the employee-employer relationship – often deem any intellectual property related to the employee’s work for the employer as being owned by the employer.  Given the discussion about paying student athletes (and the scandal surrounding payments or favors surreptitiously made to court high school players), could players potentially be “employees” thereby creating questions of ownership of player-related trademarks like Anthony Davis’ UNI-BROW?

Enjoy the games this week – the best week of the year!

 

The weekend of October 20-21, 2017, the Minnesota Golden Gophers and North Dakota Fighting Hawks traded wins in one of college hockey’s most competitive series. While watching the NCHC broadcast, an ad for the “Sioux Shop” appeared on screen. The ad explained that the Sioux Shop sells North Dakota fan gear at Ralph Englestad Arena (affectionately referred to by North Dakota fans as “the Ralph”), the 400,000 square foot, first-class hockey palace in Grand Forks where the Gophers and Hawks were facing off. I was surprised by the ad, especially in view of the fact that the University of North Dakota is no longer referred to as the “Sioux.”

Picture credit: Pinterest.

The Sioux Shop ad also reminded me of a recent experience I had when flying Southwest Airlines, in which a gate staff member was wearing a Fighting Sioux lanyard. As many frequent Southwest fliers can attest, Southwest’s employees often wear memorabilia of their favorite sports teams. I asked the staff member where she got the lanyard, as it appeared to be new. She replied that the University is still licensing the mark so as not to abandon it and that she picked it up from a licensed merchandiser. Apparently, you can also buy Fighting Sioux gear on Amazon.

As many hockey fans know, the University recently changed its mascot to the Fighting Hawks, from the Fighting Sioux, after backlash from the NCAA and a statewide ballot initiative approved the change. The “Fighting Sioux” is also one of several arguably-disparaging marks based on Native American culture that have been criticized in recent years. For example, the Fighting Sioux trademark is similar to the R-word trademark, which was challenged and later upheld by the U.S. Supreme Court this summer. With this political and legal background in mind, I thought to myself when watching the Sioux Shop ad, “Didn’t North Dakota change it’s sports mascot to the Hawks, and, if so, why does the fan shop still bear the ‘Sioux’ name? Can NCHC, an NCAA conference, even run an ad for a shop selling merchandise bearing a name similar to one that the NCAA singled out as ‘hostile or abusive’?” Just what is going on here?

It turns out that the Southwest staff member was right: the University still licenses the Fighting Sioux trademark so as to avoid abandonment. The reasons appear to be threefold: First, the University agreed in a 2007 settlement with the NCAA that it would maintain the Fighting Sioux trademark. Second, the school appears to be concerned that if it does not license the trademark and control the flow of Sioux merchandise, someone will flood the market and stymy efforts to phase in the Fighting Hawks mascot and phase out the Fighting Sioux mark. Ironically, then, in order to effectively stop using the Fighting Sioux name, the University must “use” the mark. Third—and perhaps this is unfair cynicism—money.

The Lanham Act provides that a trademark may lose its viability through abandonment when the holder of the mark both discontinues use of the mark and intends not to resume use of the mark. See 15 U.S.C. § 1127. The law states that nonuse for three consecutive years is prima facie evidence of abandonment. See id. Clearly, the University hasn’t run into that issue yet. However, the issue that the University does face is whether it is making a “bona fide use” of the Fighting Sioux mark “in the ordinary course of trade, and not made merely to reserve” its right in the mark. Id. Reductions in the use of a mark may contribute to a finding of both prongs of the abandonment test. So can failure to take action against infringers. Of course, whether a reduction in use and a change in the scope and extent of licensing shows abandonment depends on the facts and circumstances of each case.

The University’s current licensing strategy definitely toes the blue line on bona fide use. It appears that the University is only licensing productions of 9,000 pieces of merchandise at a time and in limited auctions. Such small offerings surely dwarf those available to fans in the years leading up to the mascot switch. On the other hand, the offerings are in the same category: sportswear. The geographic range of the sales is also smaller than before. In addition to the practically-discontinued use of the mark, the University’s licensing also seems disingenuous. One reason for maintaining the mark is to control the supply of Fighting Sioux gear competing with Fighting Hawks gear, and I’m not sure that purpose shows intent to use the Sioux mark (rather than mere reservation of it). I’m also skeptical that using the mark is helping transition efforts; as one source reports, new Fighting Sioux gear has been known to sell out very quickly, and fans continue to cling to the name–not to mention the Ralph, which has over 2,500 Sioux logos plastered throughout the arena in fulfillment of its late eponymous benefactor’s desire to protest a mascot name change.

Whether the University’s current use of the mark can stave off the threat of abandonment, while at the same time render the Fighting Sioux mark obsolete, remains to be seen. For now, North Dakota hockey fans are stuck between two mascots, and neighboring rivals look on in confusion, with no clear end in sight.

We write a lot here about the scope and strength of trademark rights and how that determination is often intertwined to making intelligent likelihood of confusion determinations.

Does “April Madness” fall within the NCAA’s scope of trademark rights for “March Madness“?

Likelihood of confusion? Is “March Madness” a famous mark deserving protection from dilution?

How about “Final 3”? Does that fall within the NCAA’s scope of trademark rights in “Final 4”?

These are some of the questions that will be answered in NCAA v. Kizzang LLC, filed by the NCAA in Indiana federal district court last week, a PDF of the complaint is here.

Yesterday we wrote about a 1929 decision determining that the letter “C” fell within the scope of rights of a trademark containing the letter “B”.

Now, the NCAA is asking for a mark containing the month “April” to fall within the scope of rights in a mark containing the month “March.”

Doesn’t this remind you a little bit of our prior discussions of Adidas and its “one stripe buffer” — enjoying protection of its three stripe design against two and four stripes?

Hat tip to Dan.

You don’t have to be a sports fan to be aware of MARCH MADNESS, the name associated with the annual tournament to determine the college basketball national champion. The tournament is organized by the National Collegiate Athletics Association. The name MARCH MADNESS is derived from the fact that the tournament occurs almost exclusively in March. Conferences big and small from throughout the country participate in the tournament. But one of those conferences, the Big Ten Conference, is entering a legal battle with the NCAA over the scope of the NCAA’s rights in its MARCH MADNESS trademark.

The Big Ten wants to use the tagline MARCH IS ON! to promote, sponsor, organize, and broadcast its sporting events. It filed an intent-to-use application to register the mark with the U.S. Patent and Trademark Office (USPTO). The USPTO reviewed the application and determined that the mark was eligible for registration and published the application. Unfortunately for the Big Ten, the NCAA thinks that the Big Ten’s use MARCH IS ON! will harm the NCAA’s rights in MARCH MADNESS. On February 13, the NCAA filed a Notice of Opposition to the application (available here).

The Notice of Opposition doesn’t include much detail in support of the claimed harm. Instead, other than the claim of priority, the Notice of Opposition includes a conclusory allegation that the Big Ten’s proposed use “is likely to result in confusion, mistake, or deception with [the NC, or the goods and services marketed in connection with [the NCAA’s] MARCH MADNESS mark.” The Notice of Opposition does not even allege that the marks are similar or that the goods or services are related. In light of the narrow scope of authority, pleading requirements are pretty liberal at the Trademark Trial and Appeal Board (TTAB), but even the NCAA’s Notice of Opposition is pretty sparse on factual allegations, even for a TTAB pleading.

While establishing the services are related should be an easy layup, demonstrating that the marks are similar might be a big more challenging. After all, the only similarities in the marks consist of the shared term MARCH. There is no similarity of meaning (as you might have with MARCH INSANITY) or similarity in sound (MARCH MAYHEM). Sharing a single term can be sufficient to establish a likelihood of confusion in some circumstances, but confusion may be avoided if the shared term is descriptive of the services or weak in some other way. If the NCAA’s mark was BASKETBALL MADNESS, it would be difficult to claim that consumers would be confused with the Big Ten’s use of BASKETBALL IS ON!

While MARCH isn’t as weak as BASKETBALL, the term describes when the NCAA tournament occurs and when the Big Ten basketball tournament occurs. It seems like the claim may be an overreach by the NCAA. But who knows, perhaps this claim will be another of the many Cinderella stories associated with the NCAA. We’ll have to check back in the second half.

 

Here’s hoping your 2016 brackets did better than mine last week, but this has been quite a crazy and exciting tournament thus far.  As a Marquette fan, the IndianaNotre DameWisconsin area of the bracket has been quite disheartening.  And the buzzer beaters galore this tournament have left many faces looking somewhat like Indiana coach (and former Marquette coach) Tom Crean’s from a few years ago:

tomcreanimage

We’ve had a number of postings on here regarding March Madness (at least here, here, and here) and particularly the NCAA’s prolific enforcement of its MARCH MADNESS marks (see at least here).

Much to my surprise the other day, I encountered the following allowed trademark application for MARCH CRAFTNESS for use in connection with “providing recognition and incentives by the way of awards and contests to demonstrate excellence in the field of brewing beer.”  The applicant merely needs to put in a Statement of Use, and a certificate of registration will issue.  Surprisingly given the NCAA’s history on the mark, there was no opposition by the NCAA.

Beer and the NCAA don’t publicly mix for the tournament (well, except when viewing the games at the bar with your buddies).  The NCAA’s alcohol policy bans sale of beer during the tournament at venues and encourages sales to be banned near campus throughout the regular season.  They even cover up beer advertisements in the arena during the tournament in venues that often do not host regular season games.  It would be interesting to see how the Applicant for MARCH CRAFTNESS uses it in a way that dispels any likelihood of consumer confusion or dilution of the MARCH MADNESS mark.

But there are other registered marks or allowed marks at least as similar to MARCH MADNESS as MARCH CRAFTNESS, including MARCH RADNESS for skiing and snowboarding services.  There is also a registration formerly owned by Heifer International and transferred to the NCAA for MARCH MATCHNESS for charitable fundraising services.  Might the NCAA adjust their alcohol policy and decide to participate in the craft beer craze with MARCH CRAFTNESS?  Even if they purchased the mark from the applicant, the NCAA would still have to use it in order to retain rights in it.

Incidentally, there is already sort of a “Big Dance” of beer on the Washington Post called BEER MADNESS so I am curious to see how the applicant for MARCH CRAFTNESS ultimately uses the mark.   Unlike the tournament, really good beers from Northern Iowa, Wisconsin, Iowa, Green Bay, and other parts of the Upper Midwest where teams didn’t make the tournament (e.g. Minnesota), seemed conspicuously absent from the Beer Madness bracket.  Upon review of the bracket, my face probably looked a little like Tom Crean’s above.  I hope that’s not a sign that “Fly Over Country” is “Drink Over Country” because breweries in this region routinely win top awards at major beer festivals.  What would be in your March Madness Final Four of beer?

 

– Draeke Weseman, Weseman Law Office, PLLC

Last week, the Chicago Sun Times profiled Loeb & Loeb attorney Douglas Masters, the NCAA’s outside counsel in charge of trademark enforcement during March Madness. Licensing the official sponsorships is big business, and enforcement demands require Masters to send out hundreds of cease-and-desist letters to both accidental infringers and sneaky businesses trying to skirt around expensive trademark licenses. No doubt some of the enforcement demands are probably questionable – just like Steve noted during the Super Bowl, it’s fair to wonder if it’s really necessary to invent code words to invite customers to watch March Madness games with you. Some do:

1marchbballtournamentAnd some don’t:

2blockpartyWhere the choice gets more interesting is where an official sponsor and a direct competitor overlap in their desire to capture audience attention during March Madness. Official sponsors pay the NCAA a pretty penny for a piece of the Madness while competitors attempt to dance around the “official” marks. Based on Twitter posts, can you pick out the official sponsors versus their competitors in the categories below?

Mobile Phone Service

3att 4verizon

Online Search

5google 6bing

Luxury Cars

7lexus 8infiniti

Fast Food

9burgerking 10mcdonalds

Insurance

11allstate 12libertymutual

Rental Cars

13hertz 14enterprise

Home Improvement Stores

15homedepot 16lowes

Domestic Cars

17chrysler 18buick

Televisions

19lg 20vizio

Did anything about these posts tip you off? Want to know how you did? Here is a list of official sponsors, for those interested in keeping score:

21officialsponsors

Marketers, what do you think of the Twitter posts? Which posts were the most creative? If you were an official sponsor, would you be more direct about your sponsorship? Without looking on Twitter, any guess as to what other March event some competitors chose to officially sponsor instead?

Trademark attorneys, would you think about sending any of these competitors a cease-and-desist letter?

Following a nice evening out chatting with Kevin O’Keefe, it’s time for my favorite weekend of all – the NCAA tournament.

Now this post isn’t necessarily about basketball, but rather rivalries. In particular, rivalries between the state of Michigan and the state of North Carolina. Michigan v Duke, Michigan State v. North Carolina…there’s plenty of rivalry there.

Within the last week, Michigan-based brewery Bell’s Brewery, which brews one of my favorite transported ales – the Bell’s Two Hearted Ale, has challenged the name of North Carolina-based brewery Innovation Brewing, which brews about 500 barrels a year.

Anything striking a chord for trademark issues yet?  Any idea why Bell’s might be challenging a company like Innovation Brewing?

Well because, unbeknownst to me likely because I have only ever purchased Bell’s off of a tap menu, apparently Bell’s has an unregistered tagline “bottling innovation since 1985” – a tagline that I couldn’t find use of in a very cursory search of its websites and labels.

Bell’s has faced some considerable consumer scrutiny over this challenge, even being labeled a trademark “bully.”  North Carolina loyalists are pretty upset that Michigan-based Bell’s would challenge this.

What do you think?  Is it madness? Do you have any innovative strategies to combat this issue?

No opinion on this?  Well, who do you have winning it all for the NCAA basketball tournament?

 

 

 

Colleges serve an important role in American society, providing education, experience and leadership to each new generation. Also, sports. And did I mention SPORTS? Regardless of the reason (cable?), college sports have become a huge business over the last 25 years, with NCAA schools having a reported annual value of $8 billion (without including revenue generated for private companies). That number may not be accurate, but given the number of Division 1 school football and basketball programs, price of tickets, number of games, broadcast rights, merchandise, etc., I don’t think that’s an exaggerated number. And with revenue like that, it isn’t surprising that universities rely on trademark law to protect their brands.

Earlier this week, Oklahoma State University (OSU) filed a lawsuit against New Mexico State University (NMSU) over NMSU’s renewed use of its retro cowboy logo. The two logos are shown side by side below:

Hard to argue that those aren’t similar. OSU claims use of its mascot all the way back to the 1920s. NMSU claims use of their logo back to 1960s. However in 2005, NMSU moved toward a more modern logo. However, NMSU’s recent decision to sell merchandise featuring the old logo apparently sparked the lawsuit. On its website, NMSU has a document chronicling the history of its logo in which it admits that it “initially” paid royalties to OSU for use of the logo. There is no explanation of when these royalties ceased.

Of course, fans of the University of Wyoming might be a bit confused too. As it turns out, Wyoming has a similar logo that it uses, shown below:

Apparently OSU also objected to Wyoming’s use, but they reached a concurrent use agreement in 1993.  Based on the reported terms of the agreement, OSU concluded that so long as the respective logos appear in each school’s respective colors and with some text located on the clothing, that the two schools could avoid any confusion (oh, and don’t forget the royalties…). The NMSU design is already in NMSU’s colors, so perhaps OSU is just taking a really expensive route to get NMSU to add some text to the design. Or it could be the royalties. I’ll let you decide.

The dispute highlights an interesting aspect of trademark law. Regardless of the type of products involved or the amount of money on each side, the question ultimately comes down to consumer perception and whether consumers are likely to be confused. Sports teams, especially college teams, frequently use identical names for their mascots and teams. For example, the name “cowboys” is used by both, you guessed it, OSU and Wyoming (Also, another football team that you may heard of down in Dallas…). As far as Aggies go, you’ve got NMSU, Delaware Valley College, North Carolina AT&T, Texas A&M, UC Davis, and Utah State. I don’t know all of them, but this Wikipedia article lists 76 different Eagles, 46 Tigers, 39 Bulldogs, and 33 Panthers. In short, consumers are accustomed to relying on indicia other than merely the name (and likely the logo) to determine the source or sponsorship of the goods, such as the colors, school name, acronyms, etc.

But if you’re looking for unique college mascots, you’ve got the Fighting Okra of Delta State University in Mississippi, the Geoducks of Evergreen State College (it’s a type of mollusk, apparently), the Scotsdale Community College  Fightin’ Artichokes, or the St. Louis University Billikens. You never hear about any trademark disputes over mollusks or artichokes, do you?

But back to our friendly cowboys. The lawsuit seems a bit surprising. After all, the parties apparently had a forty year agreement and working relationship. Or, if “initially” paying royalties only meant a few years (5, 10?), NMSU used the logo the remainder of the 40 years without objection by OSU. The agreement with Wyoming also weakens OSU’s claim, but probably not enough to preclude a successful claim. I’d be highly surprised if the dispute lasts very long, as it seems to be ripe for settlement. Even in the billion dollar industry of college athletics, settlement is often the most efficient means of settling trademark disputes, especially if you both have pistols.