Colleges serve an important role in American society, providing education, experience and leadership to each new generation. Also, sports. And did I mention SPORTS? Regardless of the reason (cable?), college sports have become a huge business over the last 25 years, with NCAA schools having a reported annual value of $8 billion (without including revenue generated for private companies). That number may not be accurate, but given the number of Division 1 school football and basketball programs, price of tickets, number of games, broadcast rights, merchandise, etc., I don’t think that’s an exaggerated number. And with revenue like that, it isn’t surprising that universities rely on trademark law to protect their brands.
Earlier this week, Oklahoma State University (OSU) filed a lawsuit against New Mexico State University (NMSU) over NMSU’s renewed use of its retro cowboy logo. The two logos are shown side by side below:
Hard to argue that those aren’t similar. OSU claims use of its mascot all the way back to the 1920s. NMSU claims use of their logo back to 1960s. However in 2005, NMSU moved toward a more modern logo. However, NMSU’s recent decision to sell merchandise featuring the old logo apparently sparked the lawsuit. On its website, NMSU has a document chronicling the history of its logo in which it admits that it “initially” paid royalties to OSU for use of the logo. There is no explanation of when these royalties ceased.
Of course, fans of the University of Wyoming might be a bit confused too. As it turns out, Wyoming has a similar logo that it uses, shown below:
Apparently OSU also objected to Wyoming’s use, but they reached a concurrent use agreement in 1993. Based on the reported terms of the agreement, OSU concluded that so long as the respective logos appear in each school’s respective colors and with some text located on the clothing, that the two schools could avoid any confusion (oh, and don’t forget the royalties…). The NMSU design is already in NMSU’s colors, so perhaps OSU is just taking a really expensive route to get NMSU to add some text to the design. Or it could be the royalties. I’ll let you decide.
The dispute highlights an interesting aspect of trademark law. Regardless of the type of products involved or the amount of money on each side, the question ultimately comes down to consumer perception and whether consumers are likely to be confused. Sports teams, especially college teams, frequently use identical names for their mascots and teams. For example, the name “cowboys” is used by both, you guessed it, OSU and Wyoming (Also, another football team that you may heard of down in Dallas…). As far as Aggies go, you’ve got NMSU, Delaware Valley College, North Carolina AT&T, Texas A&M, UC Davis, and Utah State. I don’t know all of them, but this Wikipedia article lists 76 different Eagles, 46 Tigers, 39 Bulldogs, and 33 Panthers. In short, consumers are accustomed to relying on indicia other than merely the name (and likely the logo) to determine the source or sponsorship of the goods, such as the colors, school name, acronyms, etc.
But if you’re looking for unique college mascots, you’ve got the Fighting Okra of Delta State University in Mississippi, the Geoducks of Evergreen State College (it’s a type of mollusk, apparently), the Scotsdale Community College Fightin’ Artichokes, or the St. Louis University Billikens. You never hear about any trademark disputes over mollusks or artichokes, do you?
But back to our friendly cowboys. The lawsuit seems a bit surprising. After all, the parties apparently had a forty year agreement and working relationship. Or, if “initially” paying royalties only meant a few years (5, 10?), NMSU used the logo the remainder of the 40 years without objection by OSU. The agreement with Wyoming also weakens OSU’s claim, but probably not enough to preclude a successful claim. I’d be highly surprised if the dispute lasts very long, as it seems to be ripe for settlement. Even in the billion dollar industry of college athletics, settlement is often the most efficient means of settling trademark disputes, especially if you both have pistols.