Counterfeit gear has always been a problem along the edges of professional sports arenas on game day and larger college programs are starting to feel the effect. In this week's Enlighten Me, Delaware Public Media’s James Dawson tells us the problem has apparently trickled down to Delaware.
[audio:http://www.wdde.org/wp-content/uploads/2014/09/24812-footballfeature.mp3|titles= Delaware Public Media's James Dawson examines the University of Delaware's effort to keep knock-off merchandise out of its fans' hands.]
Flecks of gold and earthy brown flash along tree lines as autumn begins to creep through the United States. Fall means cooling temperatures, sweaters and, of course, college football.
Delaware Blue and Gold flood your eyes wherever you look near Tubby Raymond Field in Newark. You also see grills, portable gazebos and University of Delaware flags.
Something you don’t see is someone hawking shirts or anything with a Blue Hens logo on it in the surrounding parking lots.
Since 2006, UD has asked the Court of Chancery to allow them to seize any and all counterfeit merchandise within a thousand feet of their Newark campus during home football games.
“It was at least one person selling t-shirts that were counterfeit that violated our trademark,” said Jen Becnel-Guzzo, a university attorney.
“Over the years, items have been seized from people who were selling counterfeit goods. Last year, I know that no items were seized.”
Becnel-Guzzo says she’s not sure just how many people from whom merchandise has been seized over the past eight years, but guesses it’s less than ten.
University police and anyone designated by the department handle the seizures.
Those wanting to dispute UD’s claims can show up in Chancery Court at the end of the season to argue their case. Should any defendant be acquitted, the university may pay up to ten thousand dollars in damages and return any taken items.
All remaining gear is then destroyed.
Becnel-Guzzo says it’s an effort to shield fans from subpar merchandise.
“Maybe the colors aren’t quite right, they’re not quite the right blue and gold. Maybe YouDee is drawn maybe in an offensive manner, maybe just a little bit off. So it protects the consumer from purchasing goods like that,” she said.
And tailgaters I spoke with fully support U-D taking these measures for counterfeit goods.
Tom Moudy has held season tickets for Blue Hen football games for more than three decades.
“I think they should have the right [to seize counterfeit goods], I mean, because you don’t want to buy something cheap. I remember years ago going to concerts and you always buy one of those concert t-shirts,” said Moudy.
“You get to wear it for a day and then the next day you wash it and it shrinks up.”
That’s the consensus among those willing to speak on the record.
However, none of them had actually witnessed anyone selling counterfeit merchandise – including John Johannsen, another longtime season ticket holder.
“If it does exist, I agree with the university that there should be ramifications against it, but I don’t know that it does exist. I haven’t seen it.”
Another provision within the court filing did inspire a bit of annoyance with some of the Blue Hen faithful, though. You’re also not allowed to sell game tickets – legitimate or not – within that same thousand foot buffer zone around campus.
That’s despite Delaware’s scalping law already prohibiting anyone selling tickets for a profit near the Bob Carpenter Center on the day before and day of events, among other areas in the state.
Becnel-Guzzo says again, it’s about consumer protection.
“They could be real tickets, they could be counterfeit tickets and it’s difficult to know from just looking at them,” she said.
“So that clearly protects members of the public from buying tickets that are counterfeit and getting up to the gate and finding out that they’ve just wasted their money.”
But that’s not the way fans see it. Each one I spoke with said they should be able to sell off their tickets at-cost or less if something suddenly comes up.
To Chris Murphy – that’s just common sense.
“That means I wasn’t going to use that ticket. I would think the university wants people in the stadium,” said Murphy.
“So, if I sell a ticket to a neighbor of mine at a tailgate – again, not making a profit on it – I sell it to them, the university is getting somebody in the stands that they already officially sold that ticket.”
Legally speaking, it’s within the University of Delaware’s right to protect their 60 trademarks in this way.
The origins of intellectual property law – which includes trademarks, copyrights and patents – can be traced back to 500 BC, with references to a Greek colony being granted monopolies on certain culinary dishes according to a Stanford University report.
The article says more modern forms of the law started appearing in medieval Europe around the 15th century; with Americans following suit as early as 1624.
“Trademark rights are based on some very fundamental notions about property law and one of the fundamental notions of property law is that you can acquire rights to property by using the property,” said Russell VerSteeg, an intellectual property and sports law professor at New England Law School in Boston.
That means the owners of trademarks have to actively show they’re using it and make sure others aren’t doing so without their consent.
It’s the same use it or lose it principle associated with squatters rights laws in most states.
“The provision is very broad,” said VerSteeg. “Courts have a whole lot of discretion as to how they’re going to fashion those remedies. One of the things it says is that, yeah, the court can pretty much do whatever it wants.”
But other universities across the country don’t necessarily use these kinds of preliminary court injunctions to enforce their trademarks.
The University of Maryland allows counterfeiters to hand over their gear and walk away or face a trespassing charge.
On the west coast, the University of Idaho initially gives a warning to vendors before seizing goods and the University of Washington doesn’t allow sales of any merchandise on campus without prior permission.
Other mid-Atlantic region schools did not respond to calls and emails seeking comment.
Based on the numbers, you shouldn’t be worried about accidentally buying counterfeit merchandise next time you head to a Blue Hens game.
But if you’re still concerned, just buy your shirts inside the stadium or look for the official hologram required to be on every authentic piece of gear so you can get back to enjoying the game.