Affair of the Heart Turns to Bedlam – But Was the Law Violated?
The District Attorney of Oklahoma County according to The Oklahoman has announced that the sellers at the Affair of the Heart craft show will not be prosecuted for violation of trademarks of the University of Oklahoma or Oklahoma State University. The District Attorney has not announced and has reserved on the issue, according to the newspaper, whether that office will prosecute representatives of OU or OSU for confiscating crafts displayed at Affair of the Heart that bore either or both school logos.
Obviously, I am not privy to what precisely what happened, and all I know of the facts came from the newspaper. But this incident bothered me. Trademark and copyright protection of late has become very edgy. Now frustrated with the deliberate machinery of the court system, or maybe in ignorance of it, it may be turning to something else.
Self-help repossession, of course, has been permitted to secured creditors under the Uniform Commercial Code for many years. Indeed, the leading case on self-help repossession, Williams v Ford Motor Credit Co., dates from 1982. The rule has been in such cases that self-help repossession remains lawful under the uniform commercial code for secured lenders if there is no breach of the peace. But in Williams, the court made it clear that if the car owner had objected to the repossession, it would have been a breach of the peace for Ford to proceed to repo the car.
There is no corresponding right of self-help repossession in trademark or copyright law. It is possible to get a court order permitting seizure of the infringing goods, especially in cases in which the infringing goods are in fact ringers, i.e., counterfeit knock offs. See, Lorillard Tobacco Co., Inc. v. A&E Oil, Inc., ___ F.3d ___, 2007 WL 2736622 (7th Cir. 2007)(counterfeit cigarettes with counterfeit tax stamps), in which a couple packs of the counterfeit cigarettes were purchased by Lorillard and then used as evidence to support a seizure order. This would have been the correct procedure for OU and OSU to follow. Also, they could simply have photographed the infringing items and then prepared lawsuits against the crafts people.
Both OU and OSU have so many lawyers in their employ that they own their own small law firms, and they no doubt employ many private law firms as well. Therefore, there would have been no excuse if in fact OSU and OU personnel wrongfully seized anything. If they seized anything without a court order and over the objection of anyone, it was a breach of the peace, and if they acted under color of state authority, it was a violation of civil rights statutes.
If the OU and OSU people, as alleged in one news story, had in their company a law enforcement officer, then that officer, too, breached the peace, because without a warrant or a court order and over the objections of anyone, even a bystander, the law enforcement officer was violating the civil rights of the owners. The law enforcement officer could have stood there and prevented disturbance of any evidence if a crime was being committed in the officer’s presence, while lawyers scrambled to obtain the appropriate court orders. While the Oklahoma Governmental Tort Claims Act might shield some the actors, or place dollar limits on some of the theories of recovery, it likely would not much impact a federal lawsuit under §1983.
The other thing that bothers me about all of this is that OU and OSU are public universities, not private businesses. They are political subdivisions of the State of Oklahoma. They survive on legislative appropriations, regardless of the profitability of their fund raising, their R&D programs (if any) or their sports programs. While that does not place their logos in the public sphere for random or unlicensed use, it does at least morally qualify their claims to protect those logos.
Moreover, both OU and OSU use their logos to brand high profile products, their multi-million dollar sports programs: revenues of $30 million for OU and $15 million for OSU. Legitimate public comment about those logos is lawful. Honoring one’s favorite team by creating a homemade craft incorporating one or both of the logos is just as much a fair comment as making fun of them. That a crafts hobbyist made a few extras and sold them at Affair of the Heart is hardly a threat to those logos, especially since they exist, as a practical if not a legal matter, partly in and partly out of the public domain.
