Two similar cases with very different results in Florida and Texas are part of an uptick in institutions of higher education getting into legal battles over trademark violations.

The case in Florida involved Florida International University suing the for-profit Florida National University and was dismissed by the lower court before the dismissal was affirmed by the Eleventh Circuit Court of Appeals. The appellate court found that college students are assumed to be relatively sophisticated consumers who wouldn’t be confused by similar-sounding names.

In Texas, the University of Houston sued the South Texas College of Law after it changed its name to the Houston College of Law. Following an injunction filed against South Texas, the school changed its name yet again to the South Texas College of Law – Houston in an attempt to head off the lawsuit.

“Trademark cases are very fact-specific, so it would be difficult to point to any one specific factor and say THAT is why the Texas case and the Florida case came out differently,” lawyer Robert M. O’Connell wrote to the Florida Record. “That said, one significant difference is that in the Houston case, the defendant school had not only adopted the Houston name, they also adopted the same color scheme, which raises a more plausible inference that there was intentional copying or free-riding going on.”

South Texas had adopted the red-and-white color scheme of the University of Houston, which may have indeed contributed to the court’s finding that the Houston name would have given South Texas a degree of unearned credibility, and although South Texas did argue that no one would be so confused as to enroll in the wrong school, the idea that trading on Houston’s image granted the college more credibility than it had earned remained important to the case.

As to what makes these higher education cases stand out among other trademark law disputes, O’Connell said the legal standard is the same for the higher education sector as for anyone else – whether the consumer could be confused. However, the bar may be set a bit higher for higher education in that regard.

“Obviously, the analysis will be somewhat different than for a consumer products case, because as the Florida court noted, prospective college students (and their parents) tend to be very careful and discriminating about choosing a school and so for that reason are less likely to be confused,” O’Connell said. “That is why most trademark cases involving colleges and universities are primarily concerned with unauthorized clothing and merchandise – consumer products that are often bought on impulse – and these cases involving schools with similar names are more unusual – and interesting.”

Despite being unusual, however, O’Connell thinks that more of these cases will arise as smaller schools, typically for-profit alternatives, try to enter the market. In effort to create a powerful brand, it may become more common to try and trade on the brands of more established schools, as was seen in these two cases.

“I suspect we will see more cases like this as the higher education landscape continues to change,” said O’Connell. “As they (new schools) market themselves more aggressively, you can expect to see more cases where similarly named established schools are pushing back. This will be particularly true as in the Florida and Houston cases where the names are geographic.”

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