"Undetermined" is not really how the sports teams are looking at the decision made last year.
However, most are registering their colors, for the added protection.
The
Smack Apparel Co suit simply mimics both the 1985
Owens-Corning Fiberglass Corp decision, where the court determined the color pink (for fiberglass products) could function as an Owens-Corning trademark, and the 1995 Supreme Court decision,
Qualitex Company v Jacobson Products Corp, where it was ruled a single color (green, in this case) could function as a trademark.
Colors can serve as trademarks if, over time, they have become recognizable by consumers as an identifier of a particular product or service (or, as decided this summer, a sports team
), and the color has no function (color that has a function, such as when it is used to signify a type of drug that is always yellow, could not also function as a trademark).
Using team colors for your sports-related products is likely to result in a lawsuit being filed against you, or a threat of one if you do not turn over your stock and hand over any and all of the profits you may have generated from your sales. Team colors WITH any text that relates in any way to the sport would be an even greater lawsuit magnet.
Although, you cannot use, say, the colors maize and blue together for any sports-related product (which includes not only sports attire but a whole range of sponsored and endorsed products) without infringing on the rights of the University of Michigan (with or without a U of M insignia or state name or anything else printed on it), you CAN make, say, "MICHIGAN" tee-shirts in maize and white, or blue and grey, or even pale blue with lemon yellow, to avoid infringement (as long as the "block M" is not used - because that, too, is trademark protected).
Visit official team websites, like the official NFL site. These sites all list what is protected by copyright and trademark. The lists are extensive.
The bottom line is that sports teams WILL sue, because the sales of team items generate HUGE amounts of money for the teams. Although trying to obtain a license is difficult and almost always prohibitively expensive for the average individual, obtaining a license is the only way to safely produce any product that uses a sports team trademark.
