College football season is upon us. This weekend, a lot of eyes will by on my alma mater as they take on Penn State in its first game in the wake of the recent scandal. A lot of eyes will be glued to TV sets and filling the stands in stadiums across the country. And that means huge licensing money, especially for high-profile teams. According to the Collegiate Licensing Company, collegiate licensing is a market currently valued at $2.7 billion a year.
With this much money at stake, it’s not surprising that universities are going to great lengths to make sure the valuable brands that underlie their sports teams are protected. But as readers of this blog know, there have been numerous accounts in the media over the last few years of “trademark bullying” — instances where brand owners are seen as going too far in protecting their rights and risk alienating potential customers.
So where do we draw the line between good enforcement and “bullying”? As with most legal questions, there’s often a lot of grey area, but I think consumers themselves provide a nice feedback loop. (Which perhaps lines up with or could be explained by a consumer theory of trademark law.)
The University of Alabama came under fire recently after it sent a cease and desist letter to a local bakery demanding that it stop making cakes and other desserts bearing the university’s logos. After a widespread show of support for the bakery, Mary’s Cakes & Pastries, the university changed its tune and (get this!) apologized to the bakery for sending the letter.
This might leave some lawyers scratching their heads, but marketing and PR folks would see this as a no-brainer. Why would you want to alienate the very people you’re hoping will fill the stands each fall and buy your official merchandise?
I think it’s fair to draw a distinction between the Alabama cookies dispute and, say, an instance where someone is selling knockoff t-shirts that compete unfairly with officially-licensed merchandise. But what about the “zone of expansion” argument and the “duty to police”? Even though I think Alabama did the right thing from a PR standpoint, would they have an argument that baked goods are a market to which they’re likely to expand or that they can’t acquiesce to the bakery’s use for fear of losing their rights? Should they?
Those are the thoughts to chew on. But, thankfully, what could have been another story of trademark bullying had a happy ending.