by Paul Alan Levy
In today’s Washington Post, John Feinstein captures an important truth about college sports –- the print headline of his column is: “Greed is the most powerful tradition in college football.” (In the online addition, the headline described greed as "the new tradition"). Whether new or longstanding, a tradition of greed is typified by a dangerous decision issued this week by a federal judge in Columbus, Ohio, in which Ohio State University was able to use trademark law to suppress a fan web site and magazine devoted to its sports teams, established by a commercial publisher.
The case arose because in the Columbus area, and indeed, throughout the State of Ohio, anything having to do with Ohio State’s major sports teams is a matter of intense public interest. Responding to that interest, a Wisconsin company, which also has a web site called Badger Illustrated and as well as a magazine about the Wisconsin Badgers, created a web site called “Buckeye Illustrated” and announced plans to publish a “Buckeye Gameday” magazine and on “Ohio State Buckeye ebook,” all featuring lavish coverage of Ohio State’s popular sports teams and containing extensive advertising. Instead of welcoming this additional coverage as a form of homage, and considering how a second set of web sites and magazines could intensify public interest and thus help promote the University, Ohio State went to court complaining of the defendants’ attempt to “rip off” Ohio State’s sports enterprise. The university protested that it had just started to license out the right to publish sports programs, instead of doing such publications inhouse, and if outsiders could publish programs without permission, the value of this licensing would be reduced.
Ohio State filed a substantial pile of TRO papers and set a hearing on six days notice. In the minimal time allotted, the defendant’s lawyer, a solo practitioner, was able to file only a response that can fairly be described as flimsy. The next day, the judge heard argument by telephone and granted not only a TRO but a preliminary injunction forbidding the defendants from using any domain names that includes the name Ohio State or Buckeyes, or using the Ohio State or Buckeyes name in any publication.