The University of Delaware logo (AP)
By SEAN O'SULLIVAN The (Wilmington, Del.) News Journal
NEWARK, Del. -- Two University of Delaware students are charging in a federal lawsuit that the school violated their right to free speech because officials would not let them sell T-shirts at homecoming imprinted with a slang phrase commonly used to heckle opposing teams.
"This is a civil rights case. My clients' freedom of expression under the First Amendment is being repressed by the threat of academic disciplinary proceedings," said attorney David Finger.
The university issued a brief written response to the suit Thursday, saying the case "has nothing to do with censorship and everything to do with trademark infringement."
"It is about the university's ongoing efforts to protect its trademarks, copyrights and intellectual property," it contends.
The lawsuit was filed by 21-year-old students Benjamin Goodman and Adam Bloom in U.S. District Court this week. It seeks $35,000 in damages for lost sales of T-shirts bearing the slogan, "U can suck our D," and other costs and fees.
In September, a month before UD's 2012 homecoming, Goodman and Bloom sent a mass email to their Facebook followers announcing they would begin selling their shirts the next day. The message apparently was forwarded to a UD official, and the school immediately sent the pair a cease-and-desist email.
That email maintained that the advertised shirts violated UD's "brand and trademarks" and that if the T-shirts were sold, "you or your group" would be referred to the Office of Student Conduct.
The notice came as a shock to Goodman, a marketing major with a minor in entrepreneurial studies, and Bloom, a leadership major with a minor in business, because they had sold 1,500 shirts at $15 each with the exact same phrase at the 2011 homecoming.
"We didn't think we had done anything wrong," Goodman said.
Earlier in 2011, the pair had consulted with someone at the school's Venture Development Center which describes itself as a "hub for campus-based entrepreneurial activity" and were told that as long as they did not use the school's trademarked interlocking U and D logo, the shirts were fine.
Based on that advice and $12,000 in profits last year the students invested more than $9,000 to have 2,000 shirts, 500 pairs of sunglasses and 500 can cozies printed for the 2012 homecoming game held on Oct. 20 against the University of Rhode Island.
Goodman said that when he asked the school what sanctions they faced if they disobeyed and sold the 2012 T-shirts, he was told the consequences would be "severe," which he took to mean suspension or expulsion.
Finger said that if this is a trademark case, UD should not be using the student disciplinary process to enforce trademark claims.
In court papers, Finger dismissed the trademark allegation, noting that the "U" and "D" on the 2012 T-shirts are in a different font and do not "interlock" like the UD logo.
David L. Hudson at the First Amendment Center, who also teaches First Amendment law at Vanderbilt Law School, said he had not read the lawsuit but observed that the school's claim of trademark infringement "sounds like a subterfuge for suppressing speech they don't like."
Goodman said they tried to work with school officials to address any concerns so they could sell the shirts this year, but officials made it clear there was nothing they could do to overcome UD's objections.
According to an email sent to Goodman, UD officials said the message on the shirt "disparages the goodwill and positive image that members of the community have regarding our trademark and the university more generally, whether or not they believe that the university produced the shirts."
Bloom and Goodman also said they saw other students selling shirts with the same "U can suck our D" phrase at the 2012 homecoming, and to their knowledge none was stopped from selling the garment or sanctioned by the school.
Goodman and Bloom believe they were targeted because they were more high-profile about their shirt sales via social media and email and had thousands of followers.
University officials said in a statement that the school has been aggressively protecting its logos and trademarks "as other universities do" for the past several years and hired the Collegiate Licensing Co. to help manage and protect the school's brand.
"The university takes seriously its legal obligation to police unauthorized uses of its trademarked logos," the statement said.