Like a quarterback sacked by his own team, a U.S. district court in Alabama granted Auburn University’s motion for a preliminary injunction against alumni, Mike Moody, and his website sixfingeryear.com in the case of Auburn University v. Mike Moody and Sixfingeryear.com (Civil Act. No. 3:08cv796-CSC November 4, 2008). There the court found that the defendants’ six finger foam hand novelty souvenirs bearing the marks AUBURN and WAR EAGLE likely infringed on Auburn’s registered trademarks.
Auburn University owned incontestable federally registered trademarks for the marks AUBURN, WAR EAGLE, AUBURN UNIVERSITY, and AUBURN TIGERS. Moody created and sold, through his website sixfingersyear.com, orange six finger foam hand novelty souvenirs designed to commemorate Auburn’s six game winning streak over the University of Alabama in the Iron Bowl. Each finger represented one of the teams’ victories, and each hand bore the words “Auburn” and “War Eagle” in blue.
Auburn called foul. It filed a motion for preliminary injunction and sued Moody for trademark infringement, unfair competition, dilution, false designation and misrepresentation of origin. Stepping in to referee the dispute, the court entered an order restraining Moody from producing, manufacturing, marketing, distributing, selling or offering to sale, the six finger foam hands bearing the marks AUBURN and/or WAR EAGLE and/or any other foam hand novelty product that contained any of Auburn University’s marks.
Playing zone defense, Woody offered several unsuccessful arguments, including a claim that he was not profiting from the sale of the hands and that he had not intended to use the marks in retail commerce. All he wanted, he claimed, was to have “fun to celebrate and hopefully make enough money to pay for the costs and buy some beer” from his “lemonade stand type project.” As the court signaled from the sideline, it was not necessary that Moody profit but only that he intended to benefit from the use of Auburn’s mark.
Perhaps his greatest fumble, however, was in selling one of his foam hands containing the words AUBURN and WAR EAGLE to an employee of the Auburn’s Trademark Management and Licensing Office after receiving a cease and desist letter from Auburn’s licensing agent.
The court easily found Moody offsides. The relevant likelihood of confusion factors, including strength of the marks, similarity of marks, similarity of goods/services, the channels of trade, defendant’s intent and actual confusion, weighed strongly in favor of Auburn. Finding it likely that Auburn would prevail on its infringement suit, the court granted a preliminary injunction.
Note: And all of this because a guy who sold 14 foam fingers to his friends for make some beer money. Perhaps Mr. Moody should have stuck to his lemonade stand.