A jury sided with Penn State University last week, finding that Vintage Brand willfully violated its trademark rights by selling merchandise featuring retro Penn State logos without the university’s authorization. The jury awarded Penn State $28,000 in damages on the basis that consumers are likely to be confused as to whether Penn State was connected to or otherwise endorsed the products bearing its logos (some pictured below). In response to the case, which Penn State filed in a federal court in Pennsylvania back in 2021, Vintage Brand argued that consumers would not automatically assume that there is a connection between its merchandise and Penn State.
In addition to siding with Penn State on the issue of potential consumer confusion (the crux of a trademark infringement claim), the jury also handed Penn State a win in finding that Vintage Brand’s use of the logos at issue was not merely ornamental or aesthetically functional, and thus, the logos function as trademarks. Vintage Brand – which offers up vintage sports t-shirts, sweatshirts, and sports apparel for college, NFL, MLB, and NBA teams – had argued that that the imagery on the t-shirts and other products at issue primarily serve “an aesthetic purpose wholly independent of any source-identifying function.”
The jury’s November 21 verdict follows from U.S. District Court for the Middle District of Pennsylvania Judge Matthew Brann’s 2022 refusal to dismiss Vintage Brand’s counterclaims in which it argued that its use of the Penn State logos was ornamental and not infringing.
Beyond that, the outcome is worth noting, as that the jury was seemingly unpersuaded by arguments from Vintage Brand that disclaimers on its website “make clear to consumers that Vintage Brand is not affiliated with [Penn State].” We can add this to our larger tracking of disclosures in the trademark context: We considered this issue this week in connection with a recent Rolex summary judgment win, in which the court focused heavily on the defendants’ disclaimers about the modified nature of the watches, and before that, we took a deep dive into disclosures/disclaimers in the resale and up cycling contexts.
Penn State’s win is also notable in light of the number of cases that have been waged against Vintage Brand by the likes of Purdue, Stanford, and UCLA on similar grounds; although, none of those cases made it to trial.
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