Is the University of Texas being a bit over-zealous in its efforts to shut down the vendors of “Saw ’em off” t-shirts and the like?Â The longhorn logo is undoubtedly a strong mark, but it’s hard to imagine a reasonable jury concluding that theÂ “sawed off” version is likely to confuse anyone, especially in football-mad Texas.Â There is a use-it-or-lose-it mentality to lots of trademark law, but that logic shouldn’t apply here.Â Trademark law doesn’t require that UT abandon good sense; there is no reason that UT’s mark and all kinds of non-confusing parodies can’t co-exist.Â Moreover, I don’t know that an independent First Amendment or parody defense is needed here, and I don’t know whether there is or should be a constitutional right to make fun of someone.Â But if that right exists nowhere else, it has to exist when it comes to talking about your college’s archrival.
The defendants are Texas A&M alumni.Â They own a registration for the phrase “Saw ’em off,” but an application to register the image (horns cut off the UT longhorn) was rejected because it was a “mutilation” of UT’s mark.Â Still, the suit is seen by some as sour grapes.Â The Aggies beat the defending national champion Longhorns last Fall, 12-7, in football.Â In Austin.Â The suit was filed ten days later.
The defendants’ “legal defense fund”
The 12th manchildÂ (pro-Aggies; images of lots of other arguably infringing marks)
Burnt Orange Nation (UT football blog; supportive of the Aggies here)