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NLJ article: Which way will the tide roll on university color scheme protections?

NEW YORK, November 3, 2010 -- In a recent National Law Journal article, Baker Botts partner Jeffrey Sullivan focused on the appeal of University of Alabama Board of Trustees v. New Life Art, where school trustees balked at the palette selected by gridiron-scene painter Daniel Moore.

Last year, an Alabama district court backed Moore’s three-part defense that cited his right to artistic expression, the First Amendment, and fair use.

Twenty-seven other universities joined the legal scrum on appeal to the 11th Circuit, submitting amicus briefs backing the University of Alabama trustees’ contention that football uniforms pass a three-part test for color-scheme trademark protection clarified by the U.S. Supreme Court in Two Pesos Inc. v. Taco Cabana Inc., namely: nonfunctionality; distinctiveness by acquired secondary meaning; and likelihood of confusion.

The forthcoming 11th Circuit opinion could influence which way the tide rolls on the trademark protectability of university color schemes.

Sullivan’s National Law Journal article can be viewed here.

Jeffrey Sullivan’s legal practice focuses on the litigation of patent, trademark, trade secret, unfair competition, and copyright disputes. He also handles negotiation, counseling, and evaluation for patent and other technology transactions, including due diligence for mergers and acquisitions, technology outsourcing, and joint ventures, as well as the negotiation of licenses, purchases, and affiliated agreements relating to intellectual property assets.

About Baker Botts L.L.P.
Baker Botts L.L.P., dating from 1840, is a leading international law firm with offices in Abu Dhabi, Austin, Beijing, Dallas, Dubai, Hong Kong, Houston, London, Moscow, New York, Palo Alto, Riyadh and Washington. With about 750 lawyers, Baker Botts provides a full range of legal services to international, national and regional clients. For more information, please visit

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