Are you confused?
Unfair Competition Claimed
I have received notification from Strategic Marketing Affiliates (SMA) that my inappropriate use of the "Marks of the University" may have caused the public to erroneously believe that my web site is sponsored or authorized by Washburn University.
In particular, it is claimed that my use of the following image on the ISS Director Search web page constitutes unfair competition. The Washburn University mark was used in this image to illustrate that there would be no Chief Information Officer at Washburn University, contrary to recommendations provided to the University in the Elert Report.
Fair Use
Fair use of a copyrighted work for purposes such as criticism, comment or news reporting is not copyright infringement. Courts have given more weight to first amendment considerations than to trademark protection when marks are used to express an idea in a non-commercial context rather than being used in a commercial context. It would appear that SMA's claim of trademark infringement is frivolous in light of a fair use defense. The threatening tone of their letter contains the characteristics of a SLAPP threat, a Strategic Lawsuit Against Public Participation (SLAPP), a form of litigation filed by a large corporation to intimidate and silence a less powerful critic by burdening the critic with the cost of a legal defense.
The Store
SMA was successful in effectively shutting down the store that had T-shirts and other items available for sale with the Washburned U image and URL. SMA claimed that Washburned U was using the Mark of Washburn University and that the Washburned U store was using the term "Washburn University" in the merchandise offerings.
Discussions with SMA and Cafe Press were fruitless. Although Cafe Press concurred that the University Mark and the Washburned U image were not similar (one of the elements of trademark infringement), they would not concede to allowing the use of the URL for the Washburned U web site on the products. The products offered at this store never did contain the term "Washburn University".
So, here are the two images involved in this dispute:
Washburn University Logo
Washburned U Logo
The standard in a trademark infringement case is the "likelihood of confusion." Are you likely to be confused as to the source or the sponsorship of goods carrying either of these images?
End Result
The Store selling Washburned U products remains closed. Profit has never been an objective of this web site. The Store was offered as a fun alternative for those who might be interested in showing some support for free speech and critical thinking.
However, the editorial content of this web site will remain uncompromised by idle threats.