U of Delaware Tries to Enforce Trademark Law Through Campus Courts

By on December 14, 2012

The annals of FIRE’s cases provide plenty of examples of universities doing a terrible job of adjudicating campus offenses from protesting, to rape to, er, saying things on Facebook that people don’t like. Now the University of Delaware, last seen giving George Orwell’s vision a run for its money, has a new job for its campus courts: dealing with trademark infringement.

At issue is the case of two students, Benjamin Goodman and Adam Bloom, who invested thousands of dollars in producing t-shirts to be sold to UD student sports fans with the tasteless (but probably inevitable) slogan: "U can suck our D." Why did the students think this was OK, you might ask? Maybe because they believe in free speech. Or, more likely, because they did it last year and it was apparently just fine. USA Today has the story:

Earlier in 2011, the pair had consulted with someone at the school’s Venture Development Center — which describes itself as a "hub for campus-based entrepreneurial activity" — and were told that as long as they did not use the school’s trademarked interlocking U and D logo, the shirts were fine.

Based on that advice — and $12,000 in profits last year — the students invested more than $9,000 to have 2,000 shirts, 500 pairs of sunglasses and 500 can cozies printed for the 2012 homecoming game held on Oct. 20 against the University of Rhode Island.

Reportedly, UD thinks it can go after the students for trademark infringement—in the campus judicial system:

Goodman said that when he asked the school what sanctions they faced if they disobeyed and sold the 2012 T-shirts, he was told the consequences would be "severe," which he took to mean suspension or expulsion.

Finger said that if this is a trademark case, UD should not be using the student disciplinary process to enforce trademark claims.

[...]

According to an email sent to Goodman, UD officials said the message on the shirt "disparages the goodwill and positive image that members of the community have regarding our trademark and the university more generally, whether or not they believe that the university produced the shirts."

Goodman and Bloom are now suing UD for preventing them from selling their merchandise. FIRE does not employ trademark experts, so we’ll refrain at this time from giving insta-analysis on the merits of the university’s trademark infringement case. But there is one thing we are sure of: the UD campus judicial system is not exactly a bastion of Lanham Act expertise either. We also know that trademark law should not and must not be used to infringe on free speech on campus, so we’ll be keeping a careful eye on this case as it develops.

Schools: University of Delaware