David Franklin


Should professional sports teams and collegiate institutions have an exclusive right to merchandise their logos? Recent court decisions have effectively provided these organizations with a monopoly in the fan apparel marketplace, as retailers who are not "officially licensed" by the underlying team or university are likely to face trademark infringement liability. In some contexts, this extension of trademark law has prevented companies from selling merchandise that merely displays a team's color scheme. However, such a broad prohibition on the use of team logos is inconsistent with the goal of trademark law, which is intended to prohibit uses of a mark only where consumers are likely to be confused as to the source or sponsorship of the underlying product. Importantly, the thrust of this goal is to bring clarity to the marketplace, as consumers use trademarks to quickly gauge a product's quality. To this end, the fan apparel context is unique because consumers do not view team logos as indicators of product quality. Rather, team logos function merely as a way for fans to show support for a given team. Because team logos do not serve to indicate a product's quality, companies should be able to design and sell fan apparel without obtaining authorization from—and paying licensing fees to—the underlying teams. Consumers would benefit greatly from this de-monopolization of the fan apparel marketplace, and they would no longer have to pay a premium to support the teams they love.