MUCK FIZZOU

University of Kansas and Kansas Athletics, Inc. v. Larry Sinks, Clark Orth, Larry Sinks Enterprises and Victory Sportswear, L.L.C. (collectively d/b/a Joe-College.com)

United States Court for the District of Kansas
March 19, 2008

Judge: Julie A. Robinson, U.S. District Court Judge

ISSUE: Plaintiff, the University of Kansas (KU), sought to prevent defendants, Joe-College.com) from selling rather edgy and irreverent unlicensed T-shirts on the grounds that such T-shirt violated plaintiff’s licensing and trademark rights and were “offensive” and disparaging to the university. One of the key T-shirts in question was a blue shirt with the letters, ‘MUCK FIZZOU.’ Poking fun of one of Kansas’ top rivals, the University of Missouri.

SURVEY EXPERT: While the burden of proof is with the plaintiff in such cases, the plaintiff offered no survey expert. Instead, the plaintiff offered Dr. Edward Hirt, a fellow of the American Psychological Association. Dr. Hirt’s testimony was used in a similar case involving Texas Tech University. His testimony centered on the psychology and motivations of those who seek to demonstrate allegiance to KU and its athletic teams and methods employed by KU to protect its reputation and public image. The defendant retained Chicago-based James T. Berger, an adjunct professor at Roosevelt University and nationally known survey expert. Berger conducted an Internet survey among students and staff at the university and residents of Lawrence, KS. The survey was based on the ability of respondents to recognize and differentiate licensed and unlicensed products and whether such factors had any effect on buying behavior.

RESULTS: The Berger survey produced overwhelming results showing people at the university and in the community were able to distinguish between licensed and unlicensed products and were able to recognize the source of such products.

REBUTTAL: While Berger critiqued the Hirt report, there was no rebuttal expert per se brought in by the plaintiff. However, plaintiff attorney Jerre B. Swann, an Atlanta-based partner of plaintiff’s law firm, Kilpatrick Stockton, attacked the Berger survey in deposition and the plaintiff filed a Daubert motion to exclude Berger’s survey results and testimony. Swann is well know as an expert on survey research and has written several articles and has appeared in panel discussions on the subject. Defendants also filed a Daubert Motion against Dr. Hirt.

RESOLUTION: The jury came back with a verdict that excluded some of the T-Shirts sold at Joe-College yet allowed most of those to continue to be sold including the infamous MUCK FIZZOU. The Daubert motion against Berger was denied. The Daubert motion against Hirt was approved in part and denied in part.

SUBJECTIVE OPINION: Joe College was able to stay in business and get a chance to recover its legal-fee loses, but the big loser in this case was Larry Sinks, owner of Joe College. He expended enormous resources to defend this action – so even as a winner, he ended up the big loser.