What’s in a name?
Quite a bit as it turns out, local brewer Austin Nielsen is learning.
Nielsen, 27, founder of Hayden-based Vandal Beer, received a demand letter from the University of Idaho objecting to his use of the Vandal name, which the school has trademarked and goes to lengths to protect.
Nielsen, a Kootenai County native who attended the University of Idaho’s School of Business and Economics for three years, hatched the idea for his brewery as a student. His vision is not only to make great beer but to do great things with it, his website says. His plan was to donate a portion of sales to the school, to be used as scholarship funds, even though his startup doesn’t have an official affiliation with the university.
“A demand letter puts the other party on notice, legally notifying them that the University of Idaho is taking a stand on this,” said Rhett Barney, a lawyer and partner at Spokane-based Lee & Hayes. Barney specializes in intellectual property, including trademarks.
A trademark, according to the United States Patent and Trademark Office, is “a word, phrase, symbol or design that identifies and distinguishes the source of the goods of one party from those of others.”
The university owns the trademark to the word “Vandal,” which is the university’s mascot. It adopted the mascot in 1921, after a 1917 basketball game where the team played with such intensity that sports writers said it “vandalized” its opponents.
Trademarks, Barney said, only cost about $250 to file. Unlike copyrights and patents, which eventually expire, trademarks never do — so long as the trademark is in use. A person or company seeking a trademark can establish “common law” rights simply by using the mark in the course of its business, even if it doesn’t file an official registration. Without registration, however, the United States Patent and Trademark Office doesn’t notify the public of the registrant’s claim of ownership.
University of Idaho Director of Communications Jodi Walker said the university appreciates when someone feels strongly about the institution and wants to support its traditions. But they’re not simply there for the taking. Nielsen’s situation violates the university’s exclusive rights to its mascot’s trademark — and, crucially, the revenue it can generate. Vandal Beer could find itself facing a challenge in court if it doesn’t accede to the University’s demand.
“We are very particular about the representation and perspective of the university,” Walker said. “‘Vandal’ is a trademarked word.”
Trademarks, which is to say brands, are not big business — they’re huge business. The most valuable trademarks in the world are worth billions of dollars. Amazon’s trademark is valued at $150 billion — which exceeds the gross national product of Qatar — and Apple is right on Amazon’s heels, with a trademark value of $148 billion.
The dollar figures in the collegiate world have a few less zeroes, but they’re still large numbers. In 2011, the University of Texas’ football program became the first in the nation to record more than $100 million in revenue. In just three years, its licensing deals were generating profits of nearly that much. Today, the most valuable collegiate trademarks belong to Texas A&M University, according to an assessment by Forbes magazine.
The Vandal Beer website is still up, as well as an Indiegogo account that is selling Vandal Beer-branded pint glasses, growlers, bottle openers, decals, dog bandanas, shirts, sweatshirts and even a custom natural horn tankard, which is priced at $100.
It’s unclear what could happen to this inventory — and, indeed, to the founder himself — if Nielsen and the university can’t come to some sort of agreement.
“Failure to obtain a license or approval from the University’s Trademark Licensing Office would be grounds for the seizure of all non-approved merchandise bearing the university’s marks. It also could result in jail time and numerous fines if convicted,” the Vandal athletic website states.
Nielsen met with his company’s legal counsel on Friday to draft a response to the university’s demand letter.
“That response will go out within the next few days,” he said. “I look forward to helping students and the surrounding communities. We look forward to resolving this together swiftly.”