Archive for Tuesday, March 30, 2010

Wrong enemy

A court judgment against some T-shirts may not have been enough to put Joe-College out of business, but the Kansas Athletics’ legal bill finished the job.

March 30, 2010


Larry Sinks knew he was pushing the envelope — and he knew with whom he was dealing. Nonetheless, it’s a little disconcerting to see Sinks’ Joe-College T-shirt shop being run out of business, apparently at the hands of the Kansas University athletics department.

KU Athletics took Sinks to court in August 2006 for trademark violations. There were two categories or violations: infringing on the university’s registered trademarks, like the Jayhawk logo, and “diluting” the university’s brand by producing T-shirts that reflected poorly on that brand.

KU and KU athletics have every right to defend their registered trademarks. They own the rights to the Jayhawk created by Hal Sandy, for instance, and people who use that logo should be required to pay the appropriate fees. However, they should — and often do — use some discretion in how heavy-handed that enforcement will be.

KU’s lawsuit claimed that 206 T-shirt designs marketed by Joe-College infringed on or diluted the KU brand or both. In July 2008, a jury agreed with KU but only on 53 designs, just over a fourth of those in question. Some of the T-shirt problems were clear: use of the Jayhawk emblem or the word “Jayhawk.” Others were less clear, but understandable: use of “Allen Fieldhouse” or “Beware of the Phog.”

However, when the jury moved into the area of diluting the KU brand, their rationale also got a bit diluted. KU made a big deal out of the fact almost all of the T-shirts in question were blue, as in KU blue. Many observers wondered how KU could trademark a whole color, and the blue didn’t seem to matter to the jury.

So what did matter? The jury said an image of a “Missouri graduate” delivering pizza was not OK. Why? It may dilute Missouri’s brand, but not KU’s. And a shirt that said “Missouri: Worst Place Ever,” and many other Missouri shirts of questionable taste were OK. A shirt that said “Howdy from Jayhawkland” was OK, but not a shirt that said “Team Jayhawk: Hell yeah!”

Many of the shirts used the word Kansas, but the one that added “Our Coach Can Eat Your Coach,” was deemed a violation. However, a shirt that was even more specific, “Our Football Coach is Phat!” was OK. Is KU going to sue everyone who dared comment on the weight of former football coach Mark Mangino? Even in a libel case, truth is a defense.

Despite the jury’s inconsistency, however, U.S. District Judge Julie A. Robinson decided in September 2009 there was enough merit to KU’s case that Joe-College should be required to pay KU’s legal fees and expenses for bringing the lawsuit. The grand total: $667,507. Sinks was stunned when he got the news. “I don’t have it,” he said, “I can tell you that.”

Sinks didn’t say so last week when he announced his store and online business would cease operation on Wednesday, but it seems likely that closing down Joe-College is part of an agreement with KU Athletic officials to settle the case. That’s what they wanted from the beginning. They didn’t like the T-shirts and they wanted Joe-College gone.

Free speech rights are tossed around too lightly these days to justify various actions, but what has happened to Joe-College has some chilling implications for anyone who would dare criticize or poke fun at the KU “brand.” That could include students or faculty protesters, state legislators or even editorial writers. The KU athletic department’s pockets have been proven deep enough to eliminate one small local business. Who will be its next target?


brian1981 8 years ago

Is the KU Athletic Department incredibly overbearing? Yes. Did Sinks want a free ride he didn't deserve? Yes.

Would Sinks have survived if none of his KU-themed shirts were obscene? Possibly. Could Sinks have saved himself had he ceased and desisted with the KU-themed shirts when the KUAD first asked? Absolutely.

leftylucky 8 years ago

Another company off the tax rolls. Thanks KU.

BigAl 8 years ago

I too enjoyed going in to Joe-College. My out of town company almost always wanted to go there. However, this problem is on Sinks. He knew going in that he was circumventing the laws of the land. It also isn't fair to the many distributors of licensed KU t-shirts. The final straw on sinks was when he printed up the racially charged t-shirt on Frank Martin. He crossed the line.

I don't think KU had a choice. They HAD to sue. I think almost any university would have done the same. Apparently the courts agree with KU.

William McCauley 8 years ago

My mom always asks me, "how can they (KU) copyright or trade mark the word "jayhawk", this is the jayhawk state and was before KU come to town." I have no answer for her to that question.

DB Ashton 8 years ago

Mr Sinks was the architect of his own destruction and, as he contemplates his debts, we’re in his for reminding us that even free speech has implied responsibilities. He’s a silly bugger to poke the bear and arouse the t-shirt police. Times v. Sullivan dug a grave for libel in ’64, but it’s always a pleasant surprise when the issue of slander is resurrected occasionally, if only to remind us there is such a thing.

It’s also instructive that the feral KU athletics would seek to annex new intellectual property by claiming sole ownership of a color and establish the broadest possible self-definition of its alleged brand. This is the ferocious stuff of the likes of Coke, and Xerox and Apple. And now that we’re in a league that can compensate an administrator to the tune of $4.4 million, it’s us, too.

We may be Kansas, but we ain’t in Kansas anymore.

Darrell Lea 8 years ago

My friends who used to sell t-shirts and photos at Grateful Dead concerts learned a lot about trademark infringement when they had their goods confiscated and were served with a 100+ page restraining order at a show in 1988. The holder of a trademark has to protect the trademark from the small infringer, or else they lose the right to protection against the large infringer by precedent.

KU didn't put Joe College out of business. The US legal and court system did it's job, and Mr. Sinks didn't have a big enough checkbook to pay the piper. That's the way the story sometimes goes.

BrianR 8 years ago

The sky looks eerily similar to KU's blue, perhaps they should seek redress?

Haiku_Cuckoo 8 years ago

TheBigW, the word "Jayhawk" can be used if it doesn't infringe upon KU merchandising. Places like Jayhawk Pharmacy and Jayhawk Dental have no problems. In Sinks case, however, his intent was to specifically refer to KU athletics and that is what caused the problem. The same thing would happen anywhere. Near Ohio State there could be a place called "Buckeye Dry Cleaning" and that would be fine. But if a t-shirt store made unlicensed shirts that said "Go Buckeyes!", they could have legal problems. It's all about context and intent.

headdoctor 8 years ago

Beating a dead horse much? The situation was summed up in the very first line of the editorial. I do not not like how or what the Athletic Corporations have morphed into across the country nor do I like the ruling as to what shirts were or were not in violation. If Larry Sinks had been operating above board and KU pulled this, people should have been outraged. The reality of it is, he wasn't operating that way and knew it. He intentionally continued to operate even after notice was given. He not only burnt his bridges with KU long before this. He pretty much thumbed his nose at them. In the legal world he didn't leave much option for KU since he wasn't playing by the laws and quite obviously had no intention of ever doing so. The only reason his shirt operation is closing is because of his own intentional actions. I doubt he is broke. It wouldn't surprise me if closing the operation isn't just another typical Larry Sinks business practice to get away with what he has done with the least amount of damage to his pocket.

whats_going_on 8 years ago

how is "Our coach can eat your coach" a violation? Seriously...I want to know.

William McCauley 8 years ago

Haiku_Cuckoo you might want to call and ask Paul Vander Tuig Trademark Licensing Director for KU if you can start a business here in town or in the state named: Jayhawk (what ever) and not have to pay a license fee to KU for the use of the name Jayhawk, because according to Mr. Vander Tuig those companies you refer to all pay a licensing fee for the use of that word in there business name, only a few places are grandfathered such as Jayhawk pharmacy. I've had a in person meeting with the man and we talked in great detail on the use of that word (and others) in a business name. It was made clear that any such use without paying for a license fee KU would sue for infringement.

CLARKKENT 8 years ago



cthulhu_4_president 8 years ago

"Larry Sinks knew he was pushing the envelope ..."

And this fact, appearing as the first words of this editorial, automatically renders moot all the whiney sympathy that Sinks gets in the rest of the article.

He knew he was operating on the edge of the law. We're supposed to feel sorry for him that he didn't win?

Do you feel sorry for anyone who gambles and loses when they know the odds were against them from the start? People who do this are either a) Gluttons for punishment, b) trolling for sympathy. Sinks was/is both, but is probably in line with b) more than a)

ravenjayhawk 8 years ago

our ahtletic dept. is money grabbing at any expense. They have to be to pay 4.4 mil. salaries and the salaries of friends & family. Leaves a bad taste with many people. Hope for full disclosure for ticket purchasing and all other dept. actions. The worst part is the athletic dept. has taken another freedom away from the public sector in the battling of merchants. I'm sure KU sells plenty of merchandise thru the Unions. Is the store in the field house the athletic depts? Hoping for a shake-up.

Haiku_Cuckoo 8 years ago

TheBigW, you answered your own question. KU apparently took the legal steps to obtain rights to the word "Jayhawk" and is free to seek licensing fees for its usage. KU didn't invent the word, but they are certainly entitled to obtain rights to it. It happens in business all the time. The word "amazon" existed for ages, but a local bookseller that called his place "Amazon Books" would get sued by the online retailer of the same name. If a guy named Larry McDonald wanted to open a restaurant, he would have no legal right to call it McDonald's.

Babboy, colors can be legally protected. Someone pointed out in another thread that UPS forbids other delivery companies from using dark brown as a company color. Owens Corning is the only insulation manufacturer that can make pink insulation. They own the rights to those colors in those specific contexts.

Carol Bowen 8 years ago

Is this the same blue as the Natural Science Foundation, Microsoft Windows, DELL wallpaper, or the Democratic National Committee? Will KU sue them, too?

cthulhu_4_president 8 years ago

"Simplistic post by cthulh_4_prresident. "

Agreed, but I thought it was appropriate as this is a very simple issue: break the law --> get into trouble.

"If he was breaking the law, which I dispute ......."

We are free to dispute the rulings, but we must also acknowladge that KUAD didn't decide which shirts were in violation; a jury did. Perhaps you should dispute it with them.

"But, it clearly was close call as the rest of the story points out, so I do not think they should have to pay Lew's attorney fees."

In a case like this, it is common for the guilty party to be held accountable for all court fees. Again, this is something that Sinks no doubt knew from the very beginning. The fact remains that he had numerous opportunites to mitigate the damage that is now causing his business to close, but he chose to thumb his nose and play up the sympathy card instead.

Someone operates on the edge of the law, gets called for it, and now calls for sympathy? I have some delicious cheese to accompany that whine.

Haiku_Cuckoo 8 years ago

Hear_me, the companies you listed aren't selling KU themed merchandise so, no, there would be no need nor grounds for a lawsuit. People can use that color blue, they just can't use it to sell unlicensed KU clothing. Sinks tried to screw KU and the other local clothing retailers by making money at their expense. The reason other retailers aren't getting sued is because they operate through the proper legal means. Sinks thought he was above that.

This is common sense stuff, people. It's Business 101. KU has an obligation to protect their brand.

jonas_opines 8 years ago

Where do you buy the stuff that makes the sky look like KU's shade of blue? That sounds neat!

jobohe 8 years ago

KU dilutes its own brand when it performs poorly in academia or on the athletic field

mom_of_three 8 years ago

sinks could have ceased and desisted when he was first served with the suit and he didn't. He knew what could happen when he lost. My family never shopped at his store, because so many of the shirts were offensive, and i didn't want to support that.
And yes, his shirts reflected badly on the University and the town.

anon1958 8 years ago

Regardless of Sinks pushing the boundary, this is a classic example of the bullying tactics that are favored by the gang on the hill. KU fans are for the most part a bunch apologists that hear no evil, nor see it or speak against their beloved team of pampered and protected prima donnas, Of course this makes them no less pathetic than the fans of every other major college nba/nfl farm team.

There is a pool of antipathy toward KU that exists in Lawrence that is completely unrelated to the athletic department. However this episode with the over the top persecution of Sinks is emblematic of why there are many, many people in Lawrence that have strong negative feelings toward KU. I hope that someday this cauldron of disgust with the bullies at KU tips over and spills a huge mess of trouble all over the administration.

pace 8 years ago

Lew shaped the decision that the jayhawk could not be used in form or word by the academic departments of the University.

sad_lawrencian 8 years ago

I agree with the editorial writer -- KU is too powerful in this community. It is disconcerting that they could run a small business out of town, even a business like Sinks'.

Jay_lo 8 years ago

anon1958 (anonymous) says… "Regardless of Sinks pushing the boundary, this is a classic example of the bullying tactics that are favored by the gang on the hill. KU fans are for the most part a bunch apologists that hear no evil, nor see it or speak against their beloved team of pampered and protected prima donnas, Of course this makes them no less pathetic than the fans of every other major college nba/nfl farm team."

There is a pool of antipathy toward KU that exists in Lawrence that is completely unrelated to the athletic department. However this episode with the over the top persecution of Sinks is emblematic of why there are many, many people in Lawrence that have strong negative feelings toward KU. I hope that someday this cauldron of disgust with the bullies at KU tips over and spills a huge mess of trouble all over the administration.

A previous post shows where anon is really coming from on this issue, and it dosen't have much of anything to do with legalities, or common sense, just a total hatred for the Univesity of Kansas.

anon1958 (anonymous) says… "Normally I do not take pleasure from the misfortune of others. However my hatred of the administration of the University of Kansas is as pure as the love of the virgin Mary for baby Jesus, so ANY bad thing that happens to KU I count as a blessing."

As far as Sinks, look at it this way. If you and your family went through all the licensing and legalities to establish a business, say selling tires, and then someone in your community decided to sell black market tires for less out of their garage, you would want them stopped because the playing field wasn't level for everybody.

On the other hand if they went through the same processes as you did and set up a legal company, you might not be extremely glad to see the competition, but at least you could "compete" with them.

Just an example of why we have the laws that we do. Not meant to imply that the University couldn't compete with Sinks, so we don't need to go off in that direction.

Jay_lo 8 years ago

Oops! second paragraph in my 8:43 post should have had quotation marks as attributable to anon 1958. My bad.

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