BrandWeek reports that universities are having success suing companies that make fan paraphernalia that don’t actually use team trademarks but do use slogans, colors and other devices that conjure up the trademarks:
The schools successfully argued that, while they technically own trademarks only for their names and their commonly used initials, they’ve nonetheless each spent millions of dollars over the past years marketing items with their colors.
This is not as sickening a development as it sounds. Reading the article closely, it appears that the schools have proved that the color schemes in question actually were trademarks. Probably the author of the BrandWeek article is, like most people (including, unfortunately, most lawyers) confused between “technically own[ed]” trademarks — i.e., registered trademarks — and common law trademarks, which are very much trademarks, and very much owned, once secondary meaning is proved.
Still, the trend here remains as we have seen: Trademark ownership just expands and expands, pushing the line of demarcation wherever judges will let it go. Woe to the small businessman who steps over that line.