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?