Colors Protected Under Trademark Law

The Fifth Circuit has affirmed the district court opinion in Louisiana State Board of Supervisors v. Smack Apparel Co. LSU, USC, Ohio State and Oklahoma sued over t-shirts sold by the defendant that included the universities' colors but not their registered trademarks. The district court granted summary judgment on liability, and a jury awarded limited damages to the plaintiffs. The district court also granted injunctive relief and denied plaintiffs their attorney's fees under the Lanham Act. The Fifth Circuit affirmed, concluding "that the colors, content, and context of the offending t-shirts are likely to cause confusion as to their source, sponsorship, or affiliation." While not the first time courts have protected colors under the trademark laws, the case appears to be one of first impression in the courts of appeal with respect to NCAA teams. The court did reject the universities' claims for attorney's fees, resulting in a large monetary loss for the universities in the case. I suspect, however, that the use of the precedent in future actions will make it worthwhile.