Retro Merch Logos Infringe Penn State Trademarks, Jury Says (1)

Penn State University convinced a federal jury that Vintage Brands LLC willfully infringed its trademarks by selling merchandise with old school logos.

Vintage got the case to trial after it pursuaded the US District Court for the Middle District of Pennsylvania that consumers wouldn’t necessarily perceive the school as affiliated with the products. But Tuesday evening a jury from the school’s backyard found the seller’s wares would likely confuse consumers as to whether Penn State licensed or endorsed the products, according to a verdict placed on the docket Wednesday.

Vintage, its owner, and its manufacturer Sportswear Inc. collectively owe Penn State $28,000 in damages for the infringed merchandise, according to the verdict. The jury found Vintage and owner Chad Hartvigson infringed all eight marks at issue, and that Sportswear infringed 7 of the 8.

The verdict, while not a binding precedent, represents a win for advocates of sports teams’ rights to control how their brand is used in merchandise. District Judge Matthew W. Brann had questioned the decades-old foundation for finding teams had monopolies on ornamental use of their names and logos on merchandise, prompting concern from trademark rights advocates.

Brann’s decisions denying Penn State victory before trial suggested consumers’ modern perception that a license is needed may rest on their misconception of the law. He said the circular reasoning of granting “market exclusivity on a fake-it-til-you-make-it” basis “would seem perverse.”

Penn State filed its lawsuit in June 2021 and is one of several schools to sue Vintage over its offerings featuring school names and often older or lesser-used logos. In allegations echoing other cases, the school said Vintage sold several items of merchandise featuring its trademarks without a license, including its name, school seal, and old logos such as the “Pozniak Lion.”

Sportswear’s Near-Escape

After Penn State rested its case during the trial, Brann granted the defendants’ motion for judgment as a matter of law with regard to Sportswear, clearing the manufacturer of liability. But on Tuesday Brann granted Penn State’s motion for reconsideration, leaving Sporstwear’s liability to the jury.

Penn State argued Sportswear not only made but distributed Vintage’s goods and, alternatively, that Brann erred in holding that merely manufacturing infringing products can give rise to only contributory—not direct—infringement.

Sportswear suggested finding it directly infringed would be tantamount to holding Amazon or eBay liable for direct infringement by the platforms’ sellers. But, Brann said, “the slope is not as slippery as it would seem,” noting courts have distinguished other rote, on-demand producers from broader e-commerce platforms before.

Brann declined to say whether either distribution or manufacturing alone could support a finding of direct infringement, but he said at least the combination of the two could.

McGuireWoods LLP represents Penn State. Stokes Lawrence PS and Post & Schell PC represent Vintage.

The Pennsylvania State University v. Vintage Brand LLC, M.D. Pa., No. 21-1901, Verdict 11/19/24.