Does the unlicensed use of historic sports team logos on apparel constitute trademark infringement or ornamental design? Litigation between The Pennsylvania State University and clothing retailer Vintage Brand, which concluded with a jury verdict in Penn State’s favor in November of 2024, tested trademark protections in the vintage apparel space.
Vintage Brand’s Business Model and the Penn State Claims
Vintage Brand sells apparel and merchandise featuring images, slogans, and memorabilia associated with the former logos of university and professional sports teams. Its hangtags carry the “Vintage Brand” name, and items include a disclaimer stating that the products are not affiliated with the schools or teams depicted.
Among the merchandise Vintage Brand sells are items featuring vintage logos and slogans from Penn State sports teams. Penn State holds registered trademarks for its logos, and licenses them to third parties through formal licensing agreements. In 2021, Penn State filed counterfeiting claims and trademark infringement claims against Vintage Brand.
“Ornamental Use” Defense
Vintage Brand argued that its use of the Penn State logos did not constitute trademark infringement on two principal grounds. First, the university argued that the logos are historic images in the public domain; and second, it argued that their use is “ornamental” rather than source-identifying, meaning that the logos are decorative elements rather than source indicators.
The success of this argument centers on whether consumers purchase a shirt bearing a Penn State logo, they are expressing support for a team or making a source-based purchasing decision. According to Law360, U.S. District Judge Matthew W. Brann dismissed Penn State’s counterfeiting claim in February 2024, but allowed the question of whether Vintage Brand’s use was ornamental to proceed to trial.
Verdict and Implications for Licensed Merchandise Markets
The jury found in Penn State’s favor, awarding $28,000 in damages for trademark infringement. The monetary award was relatively modest, but for trademark holders like Penn State, the damages figure may have been secondary to the precedent for trademark owners. A finding in favor of Vintage Brand could have been a blow to the value of licensing for officially licensed products. If businesses were free to use older logos without obtaining a license, the value of officially licensed merchandise, and trademark holders’ ability to create the licensing agreements, is lessened. A verdict in favor of Vintage Brand could have disrupted the licensing structures underpinning branded merchandise.
Penn State was not alone in pursuing Vintage Brand. At least twelve other universities had filed suit against the company as of 2024. The outcomes have varied across jurisdictions: Law360 reports that a judge allowed Vintage Brand to advance its ornamental use defense in a case brought by Purdue University, while a judge in a suit filed by Baylor University rejected the ornamental use defense. Separately, an argument that the University of Illinois had abandoned an older trademark also failed. Further rulings across these and related matters are anticipated.
Consumer Surveys in Logo Trademark Disputes: Materiality and Likelihood of Confusion
Trademark cases often require empirical measures of consumer behavior and preference. Questions that consumer survey research helps address include questions about the likelihood of confusion, as to the source or endorsement of the products A likelihood-of-confusion survey measures whether consumers perceive an affiliation, sponsorship, or endorsement of the products at issue (here, the Vintage Brand shirts) by the accuser (here, Penn State). In future cases involving Vintage Brand and other defendants making ornamental-use arguments, consumer survey evidence could be introduced to provide courts and juries with measures of consumer perception.
IMS Legal Strategies provides expert litigation survey design, implementation, and testimony for trademark infringement matters, including likelihood of confusion surveys. Contact our team to discuss your litigation survey needs.
