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University logos and insignias—once limited to athletic uniforms and official stationery—now appear on everything from high-end apparel to mass-produced mugs. Collegiate merchandising is a massive industry, generating $14.8 billion in 2023 alone. Infringers have followed close behind, producing look-alike goods that blur the line between authorized merchandise and unauthorized imitation.
As universities increasingly pursue infringers, defendants have seized on a principle of trademark law to fight back: the ornamental use doctrine. Originally intended to prevent the registration of marks that serve merely as decorative features rather than source identifiers, the doctrine has morphed into an affirmative defense that challenges the validity of the plaintiff’s mark. Alleged infringers argue that university logos emblazoned on t-shirts, hats, or posters are not functioning as trademarks at all, but instead merely as ornamentation. Pennsylvania State University v. Vintage Brand, LLC (“Penn State”) is the most recent example of this trend, underscoring the confusion surrounding how courts ought to apply the ornamental use doctrine.
Using Penn State as a focal point, this Comment traces the judicial inconsistencies in the analysis of the ornamental use doctrine in collegiate merchandising cases. Ultimately, this Comment argues for a more uniform approach that incorporates two additional factors rooted in consumer protection theory: the emotional impact of advertisements and the presence of consumer-facing economic harm. This Comment’s proposals lay the groundwork for more principled and judicially consistent outcomes across circuits.
Isabel M. Carvalho *
* J.D. Candidate at the University of Richmond School of Law; B.S., 2021, University of Central Florida. I’d like to thank my professors and mentors who have taught me so much during my time at Richmond Law, especially Professor Chris Cotropia, who provided such thoughtful guidance and feedback throughout the writing process; Professor Rachel Suddarth, who has made me a stronger student and writer; and Professor James Gibson, who inspired my love for intellectual property law. I also thank my dear friends Anna Bickley, the lead editor on this piece, Caleb Jennings, our Editor-in-Chief, and the rest of my Law Review colleagues for their hard work in preparing this piece for publication—it has been a privilege to work with all of you. Finally, my deepest gratitude to my fiancé Trey Ecker, my friends, and my family for their unwavering love and support.