Penn State Wins Trademark Trial Against Online Retailer Vintage ...
A case that threatened to upend the marketplace for college sports apparel ended Tuesday when a federal jury in Pennsylvania ruled in favor of Penn State in its lawsuit against online retailer Vintage Brand.
Penn State proved that Vintage Brand, which sells vintage T-shirts, throwback hats, retro tees, socks, magnets, koozies, mugs, cutting boards and similar products associated with sports teams, infringed PSU’s trademarks by selling products bearing the school’s imagery without permission. The jury awarded Penn State $28,000 in damages, but the verdict’s real value is in a judicial finding that infringement occurred. That finding upholds a longstanding relationship between trademark law and college sports merchandise.
Penn State sued in 2021, noting that Vintage openly sells products that “free ride” off the university’s fame by using logos and imagery. Consumers may have wrongly believed they found a licensed seller for products that Penn State sells. The products at issue were sold from 2018 to 2021 and, according to Vintage, generated less than $25,000 in revenue. Those products used Penn State-connected historical images and accompanying trademarks:
Penn State v. Vintage Brands has been a focal point of attention among intellectual property law professors over the last few years. Of particular interest has been Vintage’s defense and how it could disrupt conventional understanding of trademark law.
Vintage unsuccessfully argued that its use of historic images—which Vintage argued are already in the public domain as documented history—ought to be viewed as lawful under trademark law. The company, which stressed it used a disclaimer to tell consumers that its products were not licensed by Penn State, noted that a trademark is not intended to serve as an ornamental or decorative feature. A trademark should instead identify the source of a good and distinguish it from other goods. As applied here, consumers might not believe that Vintage products using imagery from Penn State’s storied athletic history were made or authorized by Penn State. Instead, the use is merely ornamental or decorative.
Had that defense prevailed, it would have provided more confidence to Vintage and other online retailers that draw from the historical accomplishments of college athletics programs in designing and selling vintage products. Penn State is not alone in suing Vintage. Purdue, Arizona, Arizona State, Cal Berkeley, UCLA, Colorado, Oregon, Oregon State, USC, Stanford, Utah, Washington and Washington State have also filed suit. They have raised essentially the same set of arguments and complain that unauthorized use undermines their sales. Unauthorized sales also diminish the value of licenses colleges sell to apparel and merchandise companies that produce jerseys, collectibles and other products.
Vintage can appeal the ruling to the U.S. Court of Appeals for the Third Circuit. Although the ruling is also not binding precedent on cases in other federal districts, it is a victory for colleges and their official licensees.
