Testing the Bounds of Universities’ Merchandising Rights in Light of Penn State v. Vintage Brand

Abstract

The district court opinion in Pennsylvania State University v. Vintage Brand (2022) offers new legal insight about how judicial interpretations of trademark law in merchandising cases may be evolving to be much less protective of universities than in the past. Whereas successful legal arguments by universities in past trademark infringement cases have largely shielded universities and given them adequate trademark protection, that legal status quo may be shifting to be less protective of the universities as a result of recent case law, including in the instant case. Because of how the logos and emblems are used on the merchandise, the case suggests there may be an opportunity for unauthorized retailers to be able to use the names and past logos of the university without a license, a legal proposition that would curtail the expansive merchandising rights in sport. This article explores these legal issues through the Penn State case and examines how they may affect university athletics trademark licensing practices going forward if the legal climate shifts in how universities approach protection of their intellectual property.