That Old College Try: Judge-Made Monopolies in the Market for Affinity Goods

Authors

John A. Rothchild

Document Type

Article

Abstract

There is a large market for goods such as t-shirts, coffee mugs, posters, and baseball caps that are emblazoned with the names and symbols of culturally prominent institutions—universities, athletic teams, musical bands, automobile brands. We buy, wear, and display those goods to express our affinity with the referenced institution. The owners of the trade symbols that adorn these items, which this Article refers to as “affinity goods,” jealously guard what they claim is their sole right, under the trademark laws, to authorize the use of their symbols as decoration. They have brought numerous lawsuits aimed at establishing and enforcing this claimed right, and in the majority of cases have been successful. The result is a monopolized market for goods decorated with these trade symbols. This Article argues that courts that have granted trademark owners monopoly control over decorative uses of their trade symbols have misapplied trademark law, to the detriment of would-be competitors and of consumers. The root cause of their misapplication of the law is an antipathy to what they consider free-riding by these would-be competitors, who seek to extract value from the goodwill that universities, athletic teams, and others have attached to their trade symbols. But this misunderstands the premises of trademark law and the free-enterprise system. Free-riding is generally permissible and even celebrated as a form of competition that spreads benefits throughout society. The exceptions to the permissibility of free-riding, created by the intellectual property laws, are narrow, and they do not grant trademark owners control over decorative uses of their trade symbols. Once the courts begin rejecting the claims of trademark owners that trade mark law grants them the exclusive right to control the use of their symbols to decorate affinity goods, competitors will introduce their own unauthorized merchandise, resulting in lower prices and a broader selection. Appropriate labeling and prominent disclosures will assure that consumers are aware that these goods are not authorized by the trademark owner. Trademark owners can still promote the products they have authorized as the “officially licensed” ones, and consumers who value that imprimatur will know which products to buy and which to avoid.

DOI

10.37419/LR.V13.I1.7

First Page

343

Last Page

410

Recommended Citation

John A. Rothchild, That Old College Try: Judge-Made Monopolies in the Market for Affinity Goods, 13 Tex. A&M L. Rev. 343 (2025).
Available at: https://doi.org/10.37419/LR.V13.I1.7