From the LexisNexis trademark law podcast: An alumni / fan of Auburn University designs and sells giant foam hands printed with university’s marks. Auburn files suit and has won a preliminary injunction.
What stands out to me is that a college’s or team’s name on a fan article does not seem like an “indicator of source” to consumers. This would distinguish it from Board of Regents v. KST, for example (sports fan / alumni uses alma mater’s mark in the name of his private company).
In other words, people walk around with “Ralph Lauren” printed on their shirts for entirely different reasons than, say, “Oregon State University”.
And when I (admittedly, a non-sport-fan consumer) see someone with Oregon State University on a sweatshirt, I don’t think to myself, “OSU made that great sweatshirt”, but rather, “That person supports OSU.” In my theory, this use is essentially descriptive, and the text is short for “A fan of OSU.” (I realize that even this longer version may not be truly descriptive, though.)
Additionally, I think that Kozinski’s arguments in Mattel v. MCA Records (a.k.a the Barbie Girl Song case, finding (1) a different type of use when in the name of an art work — this is analogous to the different use on a fan article — and (2) the broad First Amendment protection for not-purely-commercial speech) are persuasive here.
But maybe I’m the one who’s odd. Maybe sports fans, the consumers for these products, expect that only the mark owner manufactures/licenses these products.