meh. these are all pretty distinctly different, but then again so are iowa and usm.
meh. these are all pretty distinctly different, but then again so are iowa and usm.
I know the cowboy logo on the left is Wyoming, but what school is that next to it?
Although it was a manufacturer that truly designed the wing shape to add more padding stylishly in vital spots, Michigan State was the first known school to use a version of the wing in 1933. They typically had just one stripe and a huge fat eyebrow looking wing. Just like today, Michigan State constantly changed their helmet from season to season and even game to game (like Oregon). Some of these seasons they only wore a "winged" helmet in a single game and their wing changed shapes constantly. That was back when their uniforms were black and gold, not the only colors; green and white.
FWIW, the last time MSU wore a winged helmet was the 1st game of the 1947 season. A pretty good Biggie Munn team went into Ann Arbor and lost 55-0. MSU finished the year 7-2 (their other loss was by 1 point to 8-3 Kentucky) and Michigan finished the year 10-0 with a BigTen and National Championship.
Michigan has used the winged helmet for 74 straight seasons - contrast that with Princeton that has used a winged helmet for a total of 17 seasons.
The Trademark Trial and Appeal Board reviews many factors in determining whether there is a likelihood of confusion. A comparison of the respective marks is a large factor, but it is not the only factor.
Particularly, the Board doesn't just nitpick each little element, but takes the overall impression/appearance in mind.
The near famous level of Iowa's marks along with the identical products and trade channels, along with evidence of actual confusion leads lead the TTAB to err on the side of the prior registrant rather than potential harm the goodwill that Iowa has spent years and $$$ to establish.
I would bet the actual, real, verifiable confusion in the marketplace between the two marks is so minor and so inconsequential as to be functionally invisible. The fact is that it is quite rare that either of these marks are going to be seen isolation, without accompanying words denoting either "Iowa Hawkeyes" or "Southern Mississippi Golden Eagles" or something similar.
Sure, if you put both logos in front of 83-year old grandmothers with bad eyesight they might get them confused, but then those same grandmothers confuse their own grandchildren and they're not going to be purchasing sportswear anyhow. The business market that is relevant here will have no trouble at all distinguishing between the two marks and branding systems.
Your legal background as a graphics designer notwithstanding, I'll go with the TTAB's analysis:
In short,although some purchasers of the parties’ goods will be knowledgeable fans who are likely to notice if a logo is different from the team logo to which they are accustomed, there are others who may not be so perceptive about subtle differences between the logos of sports teams. These less knowledgeable purchasers are likely to exercise a lesser degree of care in purchasing the goods given the inexpensive nature of many of the products sold under the marks. In selecting the applicable standard of care, we are constrained to make our determination based upon the least sophisticated consumers. Alfacell Corp. v. Anticancer, Inc., 71 USPQ2d 1301, 1306 (TTAB 2004).
So yes, the 83 y/o grandma is exactly the person they are thinking of when coming to this decision.
Obviously my professional opinion doesn't mean squat here since I'm not an attorney or a TTAB judge, but (assuming you've copied the text from their findings) their logic is simply faulty as hell.
"These less knowledgeable purchasers are likely to exercise a lesser degree of care in purchasing the goods given the inexpensive nature of many of the products sold under the marks."
1. The "products" in question are in most cases going to have the university and/or team wording plainly acccompanying the logo. What Iowa fan is going to purchase a sweatshirt with the words "Southern Mississippi" emblazoned on it just because the logo is roughly ovoid in shape and black and gold in color? Or what Southern MIss fan is going to buy a ball cap with "Hawkeyes" on it? Are the judges presuming illiteracy as being a legitimate consideration?
2. How are the "products" in question sold, and where? Either they are purchased in person in sporting goods stores or Walmarts or Targets in their local communities, or they're purchased online. I find it hard to believe that any sporting goods stores or Walmarts in Iowa City are going to be carrying Southern MIss apparel, nor will Iowa garb be available in Hattiesburg stores. For that matter, given the very regional appeal of Southern Miss, I would be very surprised if you could find any Golden Eagles stuff in brick and mortar stores outside of Mississippi or the immediate adjacent states. And those stores are highly, highly unlikely to be carrying any Iowa apparel.
If we're considering online purchases, nobody is going to google "football jerseys emblazoned with roughly oval yellow and black logos depicting graphically simplified avian predators" when they want to buy a jersey or a hat. They're going to google "Iowa Hawkeye jersey" or "Southern Miss cap" and the websites that they link to will automatically present the relevant pages with that team's apparel. The online user is not presented with a message saying "the team you have chosen has a logo roughly similar to another team, so we will show you both sets of apparel just to confuse you."
The only situation that would remotely justify this insane ruling would be if another sports team in Iowa or adjacent state adopted the Southern MIss logo, but with the words "Iowa Eagles" or similar. Then the real-life possibilities for confusion in the real-life marketplace might obtain. As it is, the judges are simply not thinking through just exactly what are the situations in real life that would create the marketplace confusion they allege to exist.
Maybe they're worried about the marketplace in Beijing or Shanghai, where the customers are so unfamiliar with American culture, the English language, and business branding that they literally can't tell the difference.
What happens when someone in AZ who's not a fan plans on attending a game with a friend? He goes to a generic sports apparrel store to find something to wear to the game. He finds something with the USM logo on it and no text, but he's not familiar enough with the program to know if this is an official alternate logo, a knock off logo that will pass, or some other school's logo. He purchases the shirt and USM has now profited from the likeness of the logos while Iowa has lost profit.
What happens when an 83yo woman buys a hat for her great grand child, but couldn't tell the difference between the two and she didn't see the name on the back of the hat, so she buys the cheaper one?
You assume that the names will always be paired with the logo, which is a fallacy. You also make the assumption that everyone is going to know exactly what they are looking for, which is also a bad assumption to make. If all you know is that you are looking for a yellow hawk's head outlined in black, both match that description.
I can say without any hesitation that these judges are either blind, mentally impaired, or have just made large deposits in their bank accounts courtesy of an anonymous donor in Iowa City.
The differences between the two logos are so numerous, and so fundamental, that a finding of infringement puts 50% of American corporate and business branding at risk.
I'm also a graphic designer. If it weren't for the colors there would be little to no resemblance between the two. This whole thing is bogus.
The University of Wisconsin actually sued Washburn University in '07 and won! The small University had to change it's blue swooshing W to a block W. They were actually seeking punitive damages trying to hit up the little school for bucks made on athletic sportswear with the swoosh "W". This is when I lost all respect for UW! http://www.ksallink.com/?cmd=displaystory&story_id=2206&format=print
The lawsuit accuses Washburn of "willfully, intentionally and maliciously" using the Motion W logo to deceive consumers and cause confusion.
Similar? I suppose.
Maliciously so? Facepalm.
Oh..... you lawyers and your choice of adverbs.