Brief of Amici Curiae Intellectual Property Law Professors in Support of Appellant/Cross-Appellee New Life Art, Inc. and Daniel A. Moore and Affirmance in Part
The District Court properly held that New Life Art’s (“New Life”) creative works do not infringe the University of Alabama’s (“the University”) rights in the trade dress of its football uniforms, including the their crimson and white colors. First, New Life’s realistic depiction of the University’s football games is not likely to confuse consumers about the source of New Life’s goods, or as to the University’s sponsorship of or affiliation with those goods. Confusion is actionable under the Lanham Act only when it relates to these types of source relationships, and not when consumers merely recognize the plaintiff’s mark. Second, even if some amount of confusion about a relationship between the University and New Life did exist, that confusion would be irrelevant if it was unlikely to affect consumers’ decisions to purchase art from New Life Art. Third, the District Court rightly held that the University’s football uniforms and colors are aesthetically functional as used by New Life. Fourth, and finally, New Life’s expressive works are protected under the First Amendment and cannot be deemed infringing.
Brief of Amici Curiae Intellectual Property Law Professors in Support of Appellant, Board of Trustees of the University of Alabama v. New Life Art, et al., No. 09-16412-AA, (11th Cir. August 5, 2010)
From the Table of Authorities:
Mark A. Lemley and Mark P. McKenna, Owning Mark(et)s, 109 Mich. L. Rev. 137 (2010-2011).