United States Fifth Circuit

In a trademark dispute alleging that defendant infringed trademarks by selling t-shirts with several universities' color schemes and other identifying indicia referencing the games of the schools' football teams, summary judgment for plaintiffs is affirmed where: 1) the color schemes had secondary meaning and, although unregistered, were protectible marks; 2) there was a likelihood of confusion connecting the marks and the universities themselves; 3) the marks at issue were nonfunctional and thus subject to Lanham Act protection; 4) defendants' use of the marks was not a nominative fair use; 5) the defense of laches did not apply; 6) actual confusion was not a prerequisite to an award of money damages; and 7) plaintiffs were not entitled to attorneys' fees.

Appellate Information

• Decided 11/25/2008
• Published 11/25/2008

Judges

• REAVLEY, Circuit Judge:, Before REAVLEY, STEWART and OWEN, Circuit Judges.

Court

• United States Fifth Circuit

Counsel

• For Appellant:
  
• Bruce P. Keller, Steven Zev Parnass, Debevoise & Plimpton, New York City, for Major League Baseball Properties, Inc., NBA Properties, Inc., NFL Properties, LLC, NHL Enterprises, LP, Amici Curiae., Louis T. Pirkey, PirkeyBarber, Austin, TX, for Bd. of Trustees of University of AL, Bd. of Trustees of University of AR, Auburn University, Baylor University, Boise State University and others, Amici Curiae.


• For Appellees:
  
• Richard Charles Henn (argued), Jerre B. Swann, Alex S. Fonoroff, Kilpatrick Stockton, Atlanta, GA, Stephen R. Doody, Roy, Kiesel, Keegan & DeNicola, Baton Rouge, LA, Brett Allen North, Garvey, Smith, Nehrbass & North, Metairie, LA, for Plaintiffs-Appellees., James William Tilly (argued), Tilly Law Firm, Tulsa, OK, for Defendants-Appellants.