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West Virginia University and Fastees: Not So Fast

[DISCLAIMER: It is not long after someone meets me that they learn I’m from West Virginia.  I am fiercely proud of my home state, and a loyal Mountaineer fan.  (In fact, way back when, I got married on West Virginia’s birthday. On purpose.)  So, I am delighted to write a post about two of my favorite things: West Virginia and trademarks.]

West Virginia University has requested a preliminary injunction to stop MivaMan, LLC/ from producing allegedly infringing t-shirts.  WVU strictly polices the production and licensing of apparel containing its registered and common law trademarks.  It is unclear, however, which trademarks are being used in these shirts.  And likelihood of confusion or actionable dilution seems a bigger question.

From the WVU press release, the list of WVU marks linked above, and local news accounts (here and here), it appears that WVU claims Fastees is infringing trademark rights in the words “West Virginia” in connection with the University, and in the slogan “Let’s go Mountaineers!”, as well as by using the official colors and typeface of the University.  Indeed, many shirts do contain the words “West Virginia” and a couple of them reference the common law mark “Let’s Go Mountaineers!” through the language “Let’s Go! Drink Some Beers!”*  The shirts also use blue and gold, which are the University colors.  Those colors are also the official colors of the state of West Virginia, as adopted by the State Legislature in 1963.

Without having seen the Complaint or being privy to the underlying facts, it is not clear to me that Fastees is using WVU’s marks.  And whether any of this is done in a way likely to be confusing to consumers, or actionably diluting by tarnishment, is further in doubt.  In the WVU Statement, Becky Lofstead, vice president of communications, is quoted as saying, “It is WVU’s responsibility to protect the reputation, integrity, image, and goodwill of the University through the proper use of our federally registered marks.”  While some of the t-shirts sold by Fastees are certainly less than classy, I’m not sure trademark law is the best way to protect the WVU image here.

*The middle exclamation mark is a reference to the stadium chant by fans at football games.  One half of the stadium yells, “Let’s Go!” and the other side follows with a resounding, “Mountaineers!”