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After Ohio State University won its seventh college football championship at the 2003 Fiesta Bowl, a red T-shirt with white and gray lettering reading “Got Seven?” on the front and “We Do!” on the back began circulating on the university’s Columbus, Ohio, campus. The shirt was one of hundreds manufactured by Smack Apparel, a clothing company that creates T-shirts referring to, but never explicitly referencing, college and professional sports teams. The company’s Web site claims that it is “licensed only by the First Amendment.” In 2004, responding to a dent in revenues caused by the emergence of Smack’s shirts creeping into stores that generally sold licensed apparel, several schools took action against Smack for its use of their color schemes. In a recent decision that creates substantial precedent in the collegiate licensing industry, the U.S. District Court for the Eastern District of Louisiana granted summary judgment in favor of four large state universities and the Collegiate Licensing Co. (CLC), ruling that universities can protect their color schemes as trademarks. Louisiana State University v. Smack Apparel, No. 2006 WL 2006339 (E.D. La.). Ohio State University (OSU), the University of Oklahoma (OU) and the University of Southern California (USC) joined Louisiana State University (LSU) and CLC in the suit. CLC is the largest collegiate licensing company in the country, representing more than 200 colleges, universities and football bowl games. As a result of the ruling, Smack can no longer use LSU’s purple and gold, OSU’s scarlet and gray, OU’s crimson and cream or USC’s cardinal and gold in apparel “that would identify the student with the college or university,” according to lead plaintiffs’ attorney Jerre Swann of Atlanta’s Kilpatrick Stockton. “The universities felt it was important to get clarification on an issue which diverted sales of products to Smack,” said Bruce Siegel, senior vice president and general counsel for CLC. “This was a situation where the integrity of their programs [was] on the line.” Rob Cleveland, OSU’s assistant director of trademark and licensing services, said, “[i]t is going to help us protect our interest in the stream of commerce.” He added that OSU has “128 years of equity built in a color scheme.” Smack owner Wayne Curtiss said he was “extremely disappointed” in the decision, but pointed out that the ruling affects only the Eastern District of Louisiana. He added that he wanted to appeal the ruling. The attorney for Smack, James W. Tilly of Tilly & Fitzgerald in Tulsa, Okla., was not available for comment. However, Swann said that he thought that Smack might end up going in another direction with its products. “I would suspect, knowing them, that they will try to focus on parody, First Amendment-type shirts,” he said.

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