Trademark protection for color schemes is once again in the news. On Nov. 2, 2009, the U.S. District Court for the Northern District of Alabama issued a memorandum opinion in University of Alabama Board of Trustees v. New Life Art, 677 F. Supp. 2d 1238 (N.D. Ala. 2009), a case addressing the issue of whether the University of Alabama (U.A.) had trademark rights in its football team colors. The U.A. board of trustees sued painter Daniel Moore, an artist who has gained recognition for his oil paint renditions of famous moments in U.S. football history.
The district court, in deciding cross-motions for summary judgment, noted that the colors of U.A.’s uniforms in Moore’s paintings may be a weak trade dress mark and that those paintings may create a likelihood of confusion, and thus summary judgment would not be appropriate on those issues alone. However, the court concluded that Moore was entitled to prevail on summary judgment on his defenses of the right to artistic expression, the First Amendment and fair use, noting that, even if there were some likelihood of confusion, the balancing of such likelihood and the public interest entitled Moore to prevail. The case is now on appeal to the U.S. Court of Appeals for the 11th Circuit. Twenty-seven other universities have submitted an amicus curiae brief arguing for the protection of uniform colors.
