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T-shirts that merge images of marijuana leaves with an Iowa university’s trademarks can be sold by a student group advocating marijuana legalization, a federal appeals court affirmed Feb. 13 ( Gerlich v. Leath , 2017 BL 42326, 8th Cir., No. 16-1518, 2/13/17 ).
Iowa State University violated students’ free speech rights by imposing restrictions on the group’s use of university logos on fundraising T-shirts while not imposing the same constraints on other student groups, the U.S. Court of Appeals for the Eighth Circuit said.
Last year, a federal trial court permanently enjoined the university from putting special restrictions on the campus marijuana legalization group’s use of ISU trademarks.
When a state university creates what amounts to a “limited public forum for speech,” it can’t then treat student groups differently depending on the content of their speech, the court said.
The dispute is one of several examples in which trademark law has intersected with current social and political controversies.
For example, the court compared the situation to a 1988 case in which the University of Arkansas denied funding to a gay and lesbian rights student group. So long as a state university was making resources available to student groups, it couldn’t discriminate based on a particular group’s viewpoint, the court said ( Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d 361 (8th Cir. 1988)).
The court rejected ISU’s argument that under a 2015 ruling, the T-shirts amounted to government speech. In the Walker v. Tex. Div., Sons of Confederate Veterans, Inc. case, the Supreme Court said that Texas was allowed to reject a Confederate license plate design because things appearing on a license plate constituted government speech that it could choose not to engage in.
This argument has also come up in the disputes over whether the government can deny trademark registrations to the Washington Redskins football club and the Slants rock band. They say that the First Amendment guarantees their right to register trademarks that the government deems disparaging. Last month, the Supreme Court heard arguments in the Slants case and will issue a ruling sometime this year.
Iowa State’s trademark office gives permission to some 800 student groups to use the names and symbols owned by the university on T-shirts and other branded goods to raise funds for their own use.
ISU currently holds more than 60 federal trademark registrations, including ones on terms such as “Cyclones,” “ISU,” “Iowa State,” “I State,” and slogans and symbols like its cartoon mascot Cy the Cardinal.
In 2012, university officials started rejecting T-shirt designs submitted by the campus chapter of the National Organization for the Reform of Marijuana Laws, and required the group to get pre-approval before submitting an application asking for authorization. The university previously allowed the NORML chapter to create the T-shirts, but the school came under pressured to oppose the shirts after a local official read a 2012 newspaper article that quoted a student as saying that the NORML chapter had gotten easy approval for the shirts from the university.
David & Wright P.C. and Faegre Baker Daniels LLP represented the students. The Office of the Iowa Attorney General represented the university.
To contact the reporter on this story: Anandashankar Mazumdar in Washington at AMazumdar@bna.com
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