Thursday, July 10, 2014

Recommended Reading: "Who Owns Blue? An Examination Of The Functionality Doctrine in University Sports Colors"

Here's a fine article by Michelle Gallagher on the protectability of university sports colors. Ms. Gallagher first provides a review of the law of color trademarks, reminding us of the parameters of the aesthetic functionality doctrine in that context (discussing the Second Circuit's Louboutin red sole decision and the TTAB's FTD black floral wrapping case). She then reviews several recent litigation battles over school colors (Louisiana, Texas Tech, Alabama). After that refresher course, Ms. Gallagher turns a critical eye to the "unduly broad" protection afforded Boise State University by its registration of the color blue for entertainment services (i.e., its football field). Gallagher, Who Owns Blue? An Examination Of The Functionality Doctrine in University Sports Colors, 104 Trademark Reporter 765 (May-June 2014).

Ms. Gallagher raises many interesting questions. For example, as to Boise State's policing and licensing of its mark to several colleges and high schools, what does quality control mean in that context? As to functionality, is the color blue functional in a utilitarian sense because a blue field provides certain "telegenic benefits" - i.e., it looks better on tv? Is color depletion a problem here, when so few colors are reasonably available? Is there a competitive need to use the color blue?

The author suggests that Boise State's rights in the color blue should be cut back, just as the Section Circuit cut back Louboutin's rights in (and registration of) the color red. Maybe the registration should be limited to an all blue field (no contrasting color in the end zones), or limited to a blue field with the Boise State insignia in the middle? [I note that Section 18 may be available as an avenue to restrict the Boise State registration to a particular shade of blue, or to add other restrictions like those suggested.]

In sum, a job well done by Michelle Gallagher, an LLM Candidate at Suffolk University Law School in Boston.

Read comments and post your comment here.

TTABlog notes:  I thank The Trademark Reporter for granting permission to provide a link to this article, which is Copyright © 2014 the International Trademark Association and reprinted with permission from The Trademark Reporter®, 104 TMR 765 (2014).

FWIW: for this blog I adopted the orange-and-blue school colors of my undergraduate alma mater, the University of Illinois. When George Halas, also an Illinois alum, founded the Chicago Bears, he chose the Illinois colors. It worked for him.

Text Copyright John L. Welch 2014.


At 10:27 AM, Anonymous Anonymous said...

I always thought you were paying homage to Auburn, as well you should.


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