LITIGATION TRENDS 2025 | 79 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C State University v. Vintage Brand, LLC. (Jury Verdict. ECF No. 335). In finding liability, the jury rejected Vintage Brand’s affirmative defenses of nominative fair use and aesthetic functionality and its contention that its use of disclaimers was sufficient to dispel any likelihood of confusion concerning an association with Penn State. Penn State filed suit in the U.S. District Court for the Middle District of Pennsylvania alleging that Vintage Brand’s use of historical Penn State trademarks and logos on their vintagestyle apparel and other merchandise constituted willful trademark infringement. Penn State argued that, despite Vintage Brand’s disclaimers on its website and merchandise tags that there was no affiliation with Penn State, consumers were still likely to believe there was an association or that Vintage Brand was a licensed user of the marks. Vintage Brand argued, among other defenses, that consumers purchase merchandise with the Penn State marks to show support for the school, not because of the quality of the merchandise or because they assumed the goods originated from Penn State. In essence, Vintage Brand argued that the use of such a trademark on apparel is purely aesthetic, and therefore cannot create trademark rights nor infringe a The decision is therefore a practical victory for social media platforms because the Court found their ability to “use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized” to be “expressive choices” worthy of First Amendment protection. “whether a substantial number of the law’s applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id. at 723 (internal citations omitted). As a result, on remand, the courts should review the laws in the context of uses “beyond social media” such as, for example “direct messaging,” “events management,” “email provider[s] . . . filter[ing] incoming messages,” “online marketplace[s] . . . display[ing] customer reviews,” “payment service[s] . . . manag[ing] . . . financial exchanges” and even how a “ride-sharing service” operates. Id. at 724-725. While the Court declined to address the broader question on the judicial record before it, the majority did make clear that, in the context of social media platform content moderation, the Fifth Circuit’s analysis was incorrect. Specifically, the majority held that the “Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering and labeling of third-party posts do not interfere with expression” and that the “court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds.” Id. at 727. The decision is therefore a practical victory for social media platforms because the Court found their ability to “use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized” to be “expressive choices” worthy of First Amendment protection. Id. at 740. Given the broad potential reach of these laws, however, any entity that touches the internet and engages in selfgovernance should pay close attention to the upcoming jurisprudence. Nittany Lions Prevail on Trademark Claims Against Vintage Brand In a recent victory for licensors, brand owners, universities and college sports teams, a jury sided with The Pennsylvania State University, finding that Vintage Brand, an online retailer, had infringed on multiple historic Penn State trademarks. The Pennsylvania IAI P IP/Media 78 | Weil, Gotshal & Manges LLP
RkJQdWJsaXNoZXIy MTI5NDgyMg==