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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

THE OHIO STATE UNIVERSITY, 

Plaintiff, 

Case No. 2:12-cv-662 

v. JUDGE GREGORY L. FROST 

Magistrate Judge Mark R. Abel 

SKREENED LTD., et al., 

Defendants. 

OPINION AND ORDER

This matter is before the Court for consideration of the following filings: 

(1) Plaintiff=s motion for summary judgment (ECF No. 46), Defendants’ memorandum 

in opposition (ECF No. 51), and Plaintiff’s reply memorandum (ECF No. 53); and 

(2) Defendants’ motion for summary judgment (ECF No. 48), Plaintiff’s combined 

memorandum in opposition and motion to strike (ECF No. 50), and Defendants’ reply 

memorandum (ECF No. 54). 

For the reasons that follow, this Court GRANTS IN PART and DENIES IN PART

Plaintiff=s motion for summary judgment (ECF No. 46), DENIES Plaintiff’s motion to strike, 

(ECF No. 50), and DENIES Defendants’ motion for summary judgment (ECF No. 48). 

I. Background 

Plaintiff, The Ohio State University, is in the business of licensing its trademarks for use on 

numerous items, including t-shirts and other clothing. Defendant Skreened Ltd. (“Skreened”), 

which is co-owned by Defendant Daniel Fox, is in the print-on-demand business of selling t-shirts 

and other clothing via its website and a retail store located in Columbus, Ohio. Defendants’ 

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business model consists primarily of operating a website in which users upload graphic designs or 

similar content onto the Skreened website. Other content is received via email or directly from 

customers’ flash drives. This business model results in sales in one of two ways. The bulk of 

sales involve when the uploaded content is displayed on webpages designated either “shops” or 

“storefronts,” and a visitor to the website can peruse the various shops and order a displayed item. 

Skreened then fulfills each order on demand. For example, when a customer orders a single 

t-shirt with a specific design, Skreened then prints one t-shirt featuring that design for that specific 

customer. Alternatively, a much smaller percentage of Skreened’s sales involve an individual 

presenting Skreened with content for a private order (typically a bulk order) without also offering 

the image or design for sale to the greater public via the website. Skreened still produces the 

merchandise on demand, but without the potential for Internet traffic sales. 

Plaintiff claims that Defendants are selling t-shirts with numerous designs that infringe on 

Plaintiff’s trademarks. Accordingly, after a period of Plaintiff sending Defendants warning 

letters, Plaintiff filed this lawsuit in July 2012. In a four-count amended complaint, Plaintiff 

asserts claims for the infringement of registered trademarks under 15 U.S.C. § 1114 (Count One), 

unfair competition and passing off under 15 U.S.C. § 1125(a) (Count Two), violation of the right 

of publicity under Ohio Revised Code Chapter 2741 (Count Three), and counterfeiting under 15 

U.S.C. § 1114 (Count Four) (ECF No. 31 ¶¶ 41-67.) Defendants in turn assert twenty 

counterclaims; the first counterclaim alleges that Plaintiff is engaging in unfair competition under 

Ohio law, and the remaining counterclaims each seek declaratory judgment that a specific design 

or product does not violate the law. (ECF No. 32, at Page ID # 340-64 ¶¶ 1-139.) Both sides 

have filed motions for summary judgment, which are ripe for disposition. (ECF Nos. 46, 48.) 

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II. Discussion 

A. Standard Involved 

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the 

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may therefore grant a motion for 

summary judgment if the nonmoving party who has the burden of proof at trial fails to make a 

showing sufficient to establish the existence of an element that is essential to that party’s case. 

See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) 

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

In viewing the evidence, the Court must draw all reasonable inferences in favor of the 

nonmoving party, which must set forth specific facts showing that there is a genuine issue of 

material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 

574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A 

genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that 

one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 

U.S. at 251-52). 

B. Analysis 

Involved in this litigation are several registered trademarks held by Plaintiff and used on 

clothing and other merchandise by its licensees: two “BUCKEYES” marks, registration numbers 

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1,152,683 and 1,267,035; a “BUCKEYE DESIGN” mark, registration number 2,437,954; two 

“OHIO STATE” marks, registration numbers 1,294,114 and 1,152,682; and “OSU” mark, 

registration number 1,121,595; an “OHIO STATE UNIVERSITY” mark, registration number 

1,294,115; a block “O” mark, registration number 2,689,612; a Brutus head mark, registration 

number 4,028,867; a ‘THE SHOE” mark, registration number 3,186,508; a “SCARLET & GREY” 

mark, registration number 3,173,656; a Gold Pants design mark, registration number 3,394,719; a 

“GOLD PANTS” mark, registration number 3,394,720; the Ohio State athletic logo design mark, 

registration number 2,094,602; and a running Brutus mark, registration number 4,266,878. 

Plaintiff is also asserting common law rights in the marks “OSU,” “Brutus,” and “Go Bucks.” 

Over the course of this litigation, Plaintiff has narrowed its case to proceeding against Defendants 

on only select t-shirt designs. 

1. Federal Claims 

As noted, this action presents claims for trademark infringement, unfair competition and 

passing off, violation of the right of publicity, and counterfeiting. The first of these claims 

constitutes the Count One trademark infringement claim under 15 U.S.C. § 1114. To establish 

trademark infringement under this provision of the Lanham Act, Plaintiff must prove that (1) it 

owns a valid trademark; (2) Defendants used the trademark “in commerce” and without Plaintiff's 

authorization; (3) Defendants used the trademark (or an imitation of it) “in connection with the 

sale, offering for sale, distribution, or advertising” of goods or services; and (4) Defendants’ use of 

the trademark is likely to confuse consumers. 15 U.S.C. § 1114(a). The “touchstone of liability” 

for federal trademark infringement claims brought under 15 U.S.C. § 1114 “is whether the 

defendant’s use of the disputed mark is likely to cause confusion among consumers regarding the 

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origin of the goods offered by the parties.” Daddy’s Junky Music Stores, Inc. v. Big Daddy’s 

Family Music Ctr., 109 F.3d 275, 280 (6th Cir. 1997); see also Leelanau Wine Cellars, Ltd. v. 

Black & Red, Inc., 502 F.3d 504, 515 (6th Cir. 2007). 

 In Count Two, Plaintiff then asserts a federal claim of unfair competition predicated on 

asserted trademark infringement; the theory is that Defendants are passing off their goods as 

official merchandise. This second claim rests on § 43(a) of the Lanham Act, which is codified at 

15 U.S.C. § 1125(a). That statutory provision provides in pertinent part: 

(1) Any person who, on or in connection with any goods or services, or any 

container for goods, uses in commerce any word, term, name, symbol, or device, or 

any combination thereof, or any false designation of origin, false or misleading 

description of fact, or false or misleading representation of fact, which-- 

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the 

affiliation, connection, or association of such person with another person, or as to 

the origin, sponsorship, or approval of his or her goods, services, or commercial 

activities by another person, or 

(B) in commercial advertising or promotion, misrepresents the nature, 

characteristics, qualities, or geographic origin of his or her or another person’s 

goods, services, or commercial activities, 

shall be liable in a civil action by any person who believes that he or she is or is 

likely to be damaged by such act. 

15 U.S.C. § 1125(a). Thus, this § 1125(a) unfair competition claim, like the § 1114 trademark 

infringement claim, asks whether there is a likelihood of confusion among consumers regarding 

the origin of the goods offered by the parties. In fact, the same likelihood of confusion test 

applies. Audi AG & Volkswagen of America, Inc. v. D’Amato (“Audi AG”), 469 F.3d 534, 542 

(6th Cir. 2006) (“Under the Lanham Act, 15 U.S.C. § 1051 et seq., we use the same test to decide 

whether there has been trademark infringement, unfair competition, or false designation of origin: 

the likelihood of confusion between the two marks.”). 

In Count Four, Plaintiff then asserts a claim for counterfeiting under 15 U.S.C. § 1114. 

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This claim is not redundant to the prior claims, as another judicial officer in a sister District has 

explained: 

Even if a mark is infringing, that mark is not necessarily counterfeit, 

because, while “[c]ounterfeiting is a subset of trademark infringement [and] [a]ll 

counterfeits infringe . . . not all infringements are counterfeit.” 2–5 Gilson on 

Trademarks § 5.19 (2008). Infringement, therefore, is merely one prerequisite to a 

finding of a counterfeit mark. Too, Inc. v. TJX Cos., 229 F.Supp.2d 825, 837 (S.D. 

Ohio 2002). Counterfeiting is “the act of producing or selling a product with a 

sham trademark that is an intentional and calculated reproduction of the genuine 

trademark.” Id. (citation omitted). A mark will only be considered counterfeit 

when it is “identical with, or substantially indistinguishable from, a registered 

mark.” 15 U.S.C. § 1127. 

While infringement may well create confusion in the minds of consumers, 

counterfeiting is the “passing off” of the infringing mark as the registered mark. 

See Larsen v. Terk Techs. Corp., 151 F.3d 140, 142 (4th Cir.1998); Unique 

Concepts v. Manuel, No. 85–C–4181, 1986 U.S. Dist. LEXIS 22765, at *49 

(N.D.Ill. July 15, 1986); 4 J.T. McCarthy § 25:10 (2009). 

Schneider Saddlery Co., Inc. v. Best Shot Pet Prods. Int’l, LLC, No. 1:06-CV-02602, 2009 WL 

864072, at *4 (N.D. Ohio Mar. 31, 2009). Thus, to establish liability for trademark 

counterfeiting, Plaintiff must first prevail on its infringement claim and then also show that 

Defendants intentionally used Plaintiff’s mark knowing it was a counterfeit. See id. at *3. 

The Sixth Circuit has in turn explained a counterfeiting claim as follows: 

The Lanham Act prohibits the use of “any reproduction, counterfeit, copy, 

or colorable imitation of a registered mark in connection with the sale . . . of any 

goods or services [where] such use is likely to cause confusion, or to cause mistake, 

or to deceive.” 15 U.S.C. § 1114(1)(a). To recover on a federal trademark 

counterfeiting claim, a plaintiff must show that: (1) the defendant infringed a 

registered trademark in violation of 15 U.S.C. § 1114; and (2) the defendant 

intentionally used the mark knowing it was a counterfeit as the term counterfeit is 

defined in 15 U.S.C. § 1116. 15 U.S.C. § 1117(b). Section 1116 defines 

“counterfeit mark” as “a mark that is registered on the principal register in the 

United States Patent and Trademark Office for such goods or services sold, offered 

for sale, or distributed and that is in use, whether or not the person against whom 

relief is sought knew such mark was so registered.” 15 U.S.C. § 1116(d)(1)(B)(i). 

Elsewhere, the statute provides additional clarification, defining “counterfeit” as “a 

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spurious mark which is identical with, or substantially indistinguishable from, a 

registered mark.” 15 U.S.C. § 1127. 

Laukus v. Rio Brands, Inc., 391 F. App’x 416, 425 (6th Cir. 2010). Plaintiff argues that it is 

entitled to summary judgment because, under the foregoing standard, a reasonable jury could only 

conclude that Defendants’ shirts are identical to or substantially indistinguishable from shirts sold 

by Plaintiff’s licensees. This Court agrees. 

In addition to infringement, discussed below, the marks involved in Count Four satisfy the 

additional counterfeit claim element of Defendants intentionally using marks knowing they were 

counterfeit. There are three Skreened t-shirts featuring running Brutus, one of which also bears 

the text “You just got NUTTED on.” Another Skreened t-shirt features Brutus and the text 

“Brutus is my hero.” Three Skreened t-shirts display the Ohio State athletic logo, with two of the 

designs featuring accompanying text. Two other Skreened t-shirts feature the words “Ohio 

State,” while four Skreened t-shirts feature the block O. The Gold Pants design is set forth on two 

Skreened t-shirts, and another Skreened t-shirt features the words “Scarlet & Gray.” These shirts 

are all either identical to or substantially indistinguishable from shirts sold by Plaintiff’s licensees. 

Defendants were not licensees, and if fact Defendant Fox testified that licenses were not part of 

Skreened’s business model. There is no evidence suggesting even a credible inference that 

Defendants believed they were selling genuine goods. 

There is one qualification to this disposition of Count Four. Defendants argue that their 

“running Brutus” knockoffs cannot be regarded as counterfeits because Plaintiff did not register 

this mark until January 1, 2013. As noted, registration of the mark is a prerequisite to recovering 

on a federal trademark counterfeiting claim. Therefore, the Court does not grant summary 

judgment on Count Four in regard to running Brutus t-shirts by Skreened prior to the date of 

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registration. The Court emphasizes that this speaks only to the counterfeiting claim and not to the 

other federal claims. 

 Subject to a few exceptions discussed below, Defendants do not dispute as to whether 

Plaintiff owns valid trademarks, whether Defendants used trademarks “in commerce” and without 

Plaintiff's authorization and whether Defendants used the trademark (or an imitation of it) “in 

connection with the sale, offering for sale, distribution, or advertising” of goods or services. 

Rather, the parties’ debate largely centers on the core issue of whether a likelihood of confusion 

exists. Thus, cognizant of the foregoing statutes and relevant case law, the Court turns to this 

issue. This Court recognizes, however, that the following discussion is more relevant to Counts 

One and Two than Count Four. This is because “[w]here, as here, the infringing products are 

counterfeits, likelihood of confusion may be presumed.” Coach, Inc. v. D & N Clothing, Inc., No. 

10-12813, 2011 WL 2682969, at *3 (E.D. Mich. July 11, 2011). 

The Sixth Circuit has set forth eight factors that guide the likelihood-of-confusion inquiry: 

(1) the strength of Plaintiff’s mark; (2) the relatedness of the goods; (3) the similarity of the marks; 

(4) evidence of actual confusion; (5) the marketing channels used; (6) the likely degree of 

purchaser care; (7) Defendants’ intent in selecting the mark; and (8) the likelihood of expansion of 

the product lines. See Audi AG, 469 F.3d at 542-43; AutoZone, Inc. v. Tandy Corp., 373 F.3d 786, 

792-93 (6th Cir. 2004); Frisch’s Restaurant, Inc., 759 F.2d at 1264; Frisch’s Restaurants, Inc., 

670 F.2d at 648. None of these factors are dispositive. Instead, as the appellate court has 

explained, 

[t]hese factors imply no mathematical precision, but are simply a guide to help 

determine whether confusion is likely. They are also interrelated in effect. Each 

case presents its own complex set of circumstances and not all of these factors may 

be particularly helpful in any given case . . . . The ultimate question remains 

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whether relevant consumers are likely to believe that the products or services 

offered by the parties are affiliated in some way. 

AutoZone, Inc., 373 F.3d at 793. See also Stilson & Assocs., Inc., 129 F. App’x at 997. The 

Court shall proceed to address each interrelated factor. 

Strength of Plaintiff’s mark. The Sixth Circuit Court of Appeals has stated that “[t]he 

strength of a mark is a factual determination of the mark’s distinctiveness. The more distinct a 

mark, the more likely is the confusion resulting from its infringement, and, therefore, the more 

protection it is due.” Frisch’s Restaurant, Inc., 759 F.2d at 1264. Further, as that court 

explained, “ ‘[a] mark is strong if it is highly distinctive, i.e., if the public readily accepts it as the 

hallmark of a particular source; it can become so because it is unique, because it has been the 

subject of wide and intensive advertisement, or because of a combination of both.’ ” Id. (quoting 

Callmann, Unfair Competition, Trademarks & Monopolies, ¶ 20.43 (4th ed. 1983)). 

 Plaintiff directs this Court to precedent supporting its argument that its marks are 

distinctive, while Defendants have failed to introduce a factual issue in this regard. The 

undersigned has previously recognized that “Ohio State has federally registered trademarks on the 

terms ‘Buckeye,’ ‘Ohio State,’ ‘Ohio State University,’ ‘OSU,’ and on the block ‘O,’ the buckeye 

leaf, and the Athletic Logo.” The Ohio State Univ. v. Thomas, 738 F. Supp. 2d 743, 750 (S.D. 

Ohio 2010). Other judges in this District have approved consent orders recognizing the 

distinctiveness of the marks involved. 

Relatedness of the goods. The Sixth Circuit has explained that the relatedness factor 

involves three basic criteria: “First, if the parties compete directly, confusion is likely if the marks 

are sufficiently similar; second, if the goods and services are somewhat related, but not 

competitive, then the likelihood of confusion will turn on other factors; finally, if the products are 

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unrelated, confusion is highly unlikely.” AutoZone, Inc., 373 F.3d at 797 (quoting Kellogg Co. v. 

Toucan Golf, Inc., 337 F.3d 616, 624 (6th Cir. 2003)). Thus, the appellate court has noted, “[t]he 

relatedness inquiry therefore focuses on whether goods or services with comparable marks that are 

similarly marketed and appeal to common customers are likely to lead consumers to believe that 

they come from the same source, or are somehow connected with or sponsored by a common 

company.” Id. (quoting Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 633 (6th Cir. 

2002) (quotation omitted)). There is no question here that the goods involved in this litigation are 

similar. Plaintiff’s licensees and Defendants are competitively selling t-shirts. 

Similarity of the marks. The Sixth Circuit has held that “in reviewing the similarity of 

marks the commercial context must be considered. . . . ‘[I]t is the effect upon prospective 

purchasers that is important.’ ” Frisch’s Restaurant, Inc., 759 F.2d at 1266 (quoting

McGregor-Doniger Inc. v. Drizzle, Inc., 599 F.2d 1126 (2d Cir. 1979)). This inquiry does not 

involve a simple product-to-product comparison. Rather, the Sixth Circuit has explained: 

“When analyzing similarity, courts should examine the pronunciation, appearance, 

and verbal translation of conflicting marks.” [Daddy’s Junky Music Stores, Inc.,

109 F.3d at 283.] A side-by-side comparison of the litigated marks is not 

appropriate, although naturally the commonalities of the respective marks must be 

the point of emphasis. Instead, “courts must determine whether a given mark 

would confuse the public when viewed alone, in order to account for the possibility 

that sufficiently similar marks may confuse consumers who do not have both marks 

before them but who may have a general, vague, or even hazy, impression or 

recollection of the other party’s mark.” Id. (quotations omitted). 

AutoZone, Inc., 373 F.3d at 795. The correct approach is therefore to view the marks as a whole 

and not by the individual features of the marks. See Therma-Scan, Inc., 295 F.3d at 634. 

Viewed in this light, the marks used by Defendants are indeed capable of confusing consumers. It 

is indisputable that the marks involved in this litigation are similar; often, they are even identical. 

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Evidence of actual confusion. It is well settled that “proof of actual confusion is not 

necessary to obtain injunctive relief in a Lanham Act case, but it is obviously the most probative 

proof of the likelihood of confusion.” Frisch’s Restaurant, Inc., 759 F.2d at 1267. Moreover, 

“proof that the buying public was actually deceived is necessary in order to recover statutory 

damages under the Lanham Act.” Audi AG, 469 F.3d at 542. 

There is no evidence of actual confusion in this case. 

Marketing channels used. This factor is concerned with “ ‘the parties’ predominant 

customers and their marketing approaches. Where the parties have different customers and 

market their goods or services in different ways, the likelihood of confusion decreases.’ ” 

AutoZone, Inc., 373 F.3d at 793 (quoting Therma-Scan, Inc., 295 F.3d at 636). Here, the evidence 

indicates that Plaintiff’s licensed products are marketed through various methods employing 

diverse media, including the Internet. Use of internet marketing is notable because, as the Sixth 

Circuit has explained, the 

“[s]imultaneous use of the Internet as a marketing tool exacerbates the likelihood of 

confusion,” given the fact that “entering a web site takes little effort—usually one 

click from a linked site or a search engine’s list; thus, Web surfers are more likely 

to be confused as to the ownership of a web site than traditional patrons of a 

brick-and-mortar store would be of a store’s ownership.” 

Audi AG, 469 F.3d at 544 (quoting PACCAR Inc. v. TeleScan Tech., L.L.C., 319 F.3d 243, 252 (6th 

Cir. 2003), abrogated on other grounds by KP Permanent Make-Up, Inc. v. Lasting Impression I, 

Inc., 543 U.S. 111 (2004)). Thus, the use of the Internet to market licensed products bearing 

Plaintiff’s marks and Defendants’ concurrent reliance on the Internet mean that this factor also 

favors Plaintiff. 

Likely degree of purchaser care. In examining the degree of purchaser care involved, 

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this Court remains cognizant that “ ‘the standard used by the courts is the typical buyer exercising 

ordinary caution.’ ” AutoZone, Inc., 373 F.3d at 793 (quoting Daddy’s Junky Music Stores, Inc. v. 

Big Daddy’s Family Music Ctr., 109 F.3d 275, 285 (6th Cir. 1997)). Additionally, “[t]he Sixth 

Circuit has explained that the purchaser care factor ‘often will depend upon its relationship with 

the other seven factors.’ ” Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504, 520 

(6th Cir. 2007) (quoting Daddy’s Junky Music Stores, Inc., 109 F.3d. at 285). 

Thus, the fact that licensed and unlicensed clothing products of the sort involved here are 

often distributed in the same environments, such as the Internet, matters because when products 

“are distributed in the same environments, it is likely the case that buyers exercise comparatively 

little care in selection and the likelihood of confusion is accordingly somewhat higher.” Id. 

Some confusion may also result in light of the apparent indifference of the average consumer to 

such purchases at the price point involved. See Therma-Scan, Inc., 295 F.3d at 638 (citing 

Homeowners Group, Inc. v. Home Mktg. Specialists, Inc., 931 F.2d 1100, 1111 (6th Cir. 1991)) 

(noting that as the cost or unusual nature of a purchase increases, the expectation of a higher degree 

of care involved in the purchase also increases). The price factor favors Plaintiff, although the 

Court recognizes that it is hardly dispositive of presenting a likelihood of confusion beyond 

dispute given the totality of the facts. See Little Caesar Enter., Inc., 834 F.2d at 572 (essentially 

disregarding a district court’s conclusions regarding the likely degree of purchaser care because “it 

probably makes little difference on the facts before [the court]”). Given the similarity of the 

marks and the graphic designs involved here, it is also important to note that “where marks are 

sufficiently similar, even a knowledgeable purchaser might incorrectly assume that he is 

purchasing the product of another party.” Leelanau Wine Cellars, Ltd., 502 F.3d at 520. 

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Defendants’ intent in selecting the mark. The Sixth Circuit has explained that “[i]f a 

party chooses a mark with the intention of creating confusion between its products and those of 

another company, ‘that fact alone may be sufficient to justify an inference of confusing similarity.’ 

” Therma-Scan, Inc., 295 F.3d at 638 (quoting Daddy’s Junky Music Stores, 109 F.3d at 286 

(citation omitted)). Thus, “[c]ircumstantial evidence of copying, particularly ‘the use of a 

contested mark with knowledge of the protected mark at issue,’ is sufficient to support an 

inference of intentional infringement where direct evidence is not available.” Id. at 638-39 

(quoting Daddy’s Junky Music Stores, 109 F.3d at 286). 

 Such circumstantial evidence exists here, at least in regard to the identical marks. Plaintiff 

has objected to Defendants’ conduct since 2009, including multiple times in 2011, and Defendants 

have continued to sell their products bearing counterfeit or otherwise infringing marks even in 

light of these objections. 

Likelihood of expansion of the product lines. The Sixth Circuit “has explained that 

although evidence that either party will likely expand its product lines supports finding a 

likelihood of confusion, ‘[a] finding that the parties will not expand their marks significantly . . . 

does not address the ultimate issue of likelihood of confusion.’ ” Therma-Scan, Inc., 295 F.3d at 

639 (quoting Daddy’s Junky Music Stores, 109 F.3d at 287) (internal quotation marks and citation 

omitted)). Consequently, given the relative dearth of testimony or other evidence on concrete as 

opposed to merely possible plans for expansion, this Court cannot say that this factor weighs in 

favor of either party. 

 Taking all of the foregoing factors into account and necessarily viewing all of the evidence 

in a light most favorable to the respective non-moving parties, however, the Court concludes that a 

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reasonable jury could only reach the conclusion that consumer confusion is likely to occur. The 

t-shirts employ either counterfeit marks or colorable imitations of marks so that they appear to be 

officially licensed or affiliated products. The goods are related, the sellers of the products 

involved often use common marketing channels to target consumers, and there is a relatively low 

degree of purchaser care. The touchstone question is “whether relevant consumers are likely to 

believe that the products or services offered by the parties are affiliated in some way.” AutoZone, 

Inc., 373 F.3d at 801 (quoting Homeowners Group, Inc., 931 F.2d at 1107). There is thus a 

presumed likelihood of confusion for Count Four and an inescapable conclusion of a likelihood of 

confusion for Counts One, Two, and Four. This likelihood, together with the evidence informing 

the remaining (and often undisputed) elements of each respective claim, means that Plaintiff is 

entitled to summary judgment on its federal claims. 

2. State Law Claim 

 Count Three of Plaintiff’s amended complaint is a claim for violation of the right of 

publicity under Ohio Revised Code Chapter 2741. That chapter prohibits a person from using 

any aspect of an individual’s persona for a commercial purpose both during the individual’s 

lifetime and for sixty years after his or her demise, unless otherwise permitted by the statutory 

scheme. Ohio Rev. Code § 2741.02(A)(1)-(2). The statutory scheme affords such permission 

under limited circumstances, such as when “the person first obtains the written consent to use the 

individual’s persona . . . .” Ohio Rev. Code § 2741.02(B). 

The statutory scheme defines the “right of publicity” to mean “the property right in an 

individual’s persona to use the individual’s persona for a commercial purpose.” Ohio Rev. Code 

§ 2741.01(D). “Persona” in turn “means an individual’s name, voice, signature, photograph, 

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image, likeness, or distinctive appearance, if any of these aspects have commercial value. Ohio 

Rev. Code § 2741.01(A). Finally, “ ‘[c]ommercial purpose’ means the use of or reference to an 

aspect of an individual’s persona . . . [o]n or in connection with a place, product, merchandise, 

goods, services, or other commercial activities” that are not expressly exempted under Ohio 

Revised Code Chapter 2741. Ohio Rev. Code § 2741.01(B)(1). 

 Plaintiff’s claim alleges that Defendants are violating § 2741.02(A) by using the name and 

likeness of Urban Meyer without permission. The evidence indicates that Meyer assigned his 

rights of publicity and persona to Plaintiff, which in turn licenses the persona to authorized 

licensees who sell t-shirts. The evidence also indicates that Defendants are not authorized 

licensees but are nonetheless engaged in offering for sale t-shirts bearing Meyer’s name, image, 

and likeness. Accordingly, Plaintiff is also entitled to summary judgment on Count Three. 

3. Defenses 

 Defendants raise a number of defenses to Plaintiff’s claims, but none of them preclude 

summary judgment. Plaintiff characterizes the manner in which Defendants have briefed these 

defenses as “random, unfocused arguments that obliquely reference some of the [likelihood of 

confusion] factors, and generally misstate the law.” (ECF No. 53, at Page ID # 1986.) This 

harsh assessment is perhaps a bit hyperbolic, although the Court agrees that much of the briefing is 

less focused than it might be. That evaluation cuts both ways, however; as discussed in the 

subsequent section, neither side has presented this Court with comprehensive briefing. 

Defendants are not wholly feigning confusion when they complain that “Plaintiff does not 

associate any particular product to any particular alleged trademark.” (ECF No. 51, at Page ID # 

1961.) Although the Court does not fully agree with that complaint, this Court recognizes that 

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clarity is not always the hallmark of the briefing. Regardless of the shared slipshoddiness of the 

briefing, however, the Court has been able to discern the parties’ arguments in regard to the varied 

defenses that Defendants assert against Plaintiff’s claims. Some of these defenses may be claim 

specific, but it appears that most are intended to encompass all of Plaintiff’s claims. 

Defendants promote as a defense Skreened’s reliance on an “autohold” process in which, 

after multiple rights holders complain to Skreened, certain key words describing a design or type 

of design targeted by those complaints are placed on the autohold list. To be placed on the 

autohold list, there must be a pattern, or “a couple times” when a complaint is made. (ECF No. 

45, at Page ID # 1507.) Then when another design is uploaded and described using the same 

keywords or in the same terms as those on the autohold list, it triggers an automatic hold on placing 

the design related to those words on the website. A Skreened employee then reviews the held 

designs to determine whether the design go “live”—meaning it can be released to the website—or 

whether it presents a trademark issue. 

According to Skreened’s minority owner, since approximately late 2012, Skreened has 

employed an “intellectual property specialist” to review complaints of infringement. This 

individual had previously been hired to work in the warehouse, and there is no evidence that he is 

an attorney, attended law school, is a paralegal, or has any particular training or background in 

intellectual property. (ECF No. 45, at Page ID # 1510-511.) There are also no written guidelines 

for dealing with infringement issues. (ECF No. 45, at Page ID # 1509 & 1512.) 

The primary problem with this defense is that it suffers from the same deficiency that 

underlies many of Defendants’ arguments: a carefully careless denial of the reality of the business 

in which Defendants are engaged and how the law intersects with that business. The premise 

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upon which Defendants base their overarching theory of the case is that they are insulated from 

liability because the designs do not originate with them (with the exception of a marijuana leaf 

shirt designed by Defendant Fox), but instead come to them via third parties, and it is difficult to 

police the many designs uploaded on a daily basis. These third parties are asked not to place 

infringing content on the website. But this directive and the fact that some designs are 

periodically kept off or removed from the website do not insulate Defendants from liability. 

Selling knockoffs is selling knockoffs, regardless of who suggested you sell them, 

regardless of how many other infringing products you decide not to sell, and regardless of how 

much of a hassle it is to comply with the law. 

Because there is no exception in trademark law for infringers who take an ostrich approach 

to policing their business activities and complying with the law, no reasonable jury could accept 

Defendants’ “it’s too hard/we are the actual victims” argument. The argument only attempts to 

sidestep the issue at the heart of this litigation: regardless of whatever steps taken to avoid 

infringement, did Defendants infringe on Plaintiff’s trademarks? 

 Alternatively, Defendants argue that liability is improper because the correct focus of their 

products should be on the messages presented and not on the trademarks involved. This argument 

takes three basic forms. 

First, Defendants attempt to cloak themselves in the First Amendment, positing that 

offering t-shirts with images such as those of Urban Meyer is protected political or social speech. 

But as Plaintiff correctly notes, context matters. Defendants are using the marks at issue in 

commerce, selling goods to make money. Defendants also suggest that this endeavor carries with 

it a larger “message,” discussed in the third point below, and that message has little to do with 

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protected or social speech as Defendants suggest. 

Second, Defendants also argue that at least one of their Brutus images and their Go Bucks 

marijuana leaf design are parodies. But “[n]ot all parodies and satires . . . are protected as fair 

use.” Dallas Cowboy Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th 

Cir. 1979). Plaintiff directs this Court to persuasive authority in its briefing that an allegation of 

parody is but one consideration to be considered in the larger context of possible infringement. 

The evidence here does not in turn suggest that Defendants are seeking to be ironic commentators 

on academia or college athletic culture; the only evidence before this Court is that Defendants are 

trying to make a buck by appropriating marks for commercial use. Thus, Defendants’ 

underdeveloped “simple allusion to the concept of parody” is insufficient to create a genuine issue 

of material fact precluding summary judgment in favor of Plaintiff. Id. 

Third, Defendants appear to pursue making a larger point that the purchase of their wares is 

to express fan identification with and support for The Ohio State University, so that the individual 

marks employed are inconsequential means to that end (i.e., there are only so many ways to 

identify an “O” or to refer to the school and its teams or programs). As Plaintiff notes, this 

argument does not necessarily help Defendants because it is the marks that create the identification 

and demonstration of support. In other words, the marks are not used to describe Defendants’ 

products, but to embody Defendants’ products with meaning that trades on the goodwill and 

promotion that Plaintiff has and licenses out for profit. 

 Defendants also posit that they evade summary judgment because Skreened is an Internet 

Service Provider, an advertiser, and a media company or outlet. The crux of these arguments is 

that any of these three statuses would exempt Defendants from liability. For example, 

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Defendants note that 47 U.S.C. § 230(c)(1) provides that “[n]o provider or user of an interactive 

computer service shall be treated as the publisher or speaker of any information provided by 

another information content provider.” Thus, Defendants reason, they are immunized against 

claims because § 230 preempts Ohio Revised Code Chapter 2741. Defendants also assert, as 

another example, that even if Ohio Revised Code Chapter 2741 applies, they fall within the 

statutory exemption from liability for “[t]he owners or employees of any medium used for 

advertising.” Ohio Rev. Code § 2741.02(E). 

 Several points are necessary. First, Plaintiff is correct that because Defendants failed to 

plead these various affirmative defenses, they have forfeited reliance on the various statutory 

exemptions and immunities. See Fed. R. Civ. P. 8(c)(1). 

Second, even if Defendants had not forfeited reliance on § 230, they ignore the fact that its 

immunity provision does not apply in the trademark context or in the context of a state law right of 

publicity claim. See 47 U.S.C. § 230(e)(2) (“Nothing in this section shall be construed to limit or 

expand any law pertaining to intellectual property.”); 47 U.S.C. § 230(e)(3) (“Nothing in this 

section shall be construed to prevent any State from enforcing any State law that is consistent with 

this section.”); 47 U.S.C. § 230(e)(4) (“Nothing in this section shall be construed to limit the 

application of the Electronic Communications Privacy Act of 1986 . . . or any similar State law.”); 

Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1322-324 (11th Cir. 2006); Ford Motor Co. v. 

GreatDomains.com, Inc., No. 00-CV-71544-DT, 2001 WL 1176319, at *1 (E.D. Mich. Sept. 25, 

2001). 

Third, even if Defendants had not forfeited reliance on Ohio Revised Code § 2741.02(E) 

and 15 U.S.C. § 1114(2)(B), they fail present any persuasive authority for construing the statutory 

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exemptions as broadly as they seek to do. There is also a dearth of evidence supporting, for 

example, the claim that Defendants are paid advertisers. Instead, there is evidence that this is not 

an accurate characterization of Defendants. The description of Skreened’s business model by its 

two owners actively and conclusively refutes the core premise upon which Defendants rely. 

Defendant Fox, the majority owner of Skreened, testified at his deposition as follows: 

Q. Okay. If – what all businesses is Skreened engaged in? 

A. Could you clarify your question, please. 

Q. Sure. 

 Proctor & Gamble makes soap, they make diapers, they make hair care 

products. What products or services does Skreened do? 

A. We print apparel on an on-demand basis, primarily for retail customers. 

(ECF No. 43, at Page ID # 646.) Michael Alan Limes, who owns a minority stake in Skreened, 

similarly testified at his deposition as follows: 

Q. And Mr. Fox stated that Skreened’s business was printing apparel for retail 

customers. Is that your knowledge of what Skreened does? 

A. Yes. 

(ECF No. 45, at Page ID # 1493.) Thus, all of Skreened’s owners testified that the company is 

simply in the business of printing apparel, without mentioning being in the advertising business or 

serving as a provider of any sort. No reasonable juror could interpret the evidence as Defendants 

urge. 

 Defendants also imply that they were able to use various marks due to registration issues or 

the nature of the marks. For example, they point to the relatively recent registration of the 

“running Brutus” mark involved in this case. The date of registration is largely inconsequential to 

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the issues before this Court, however, given that registration generally informs ownership and 

incontestability issues. This is because “The Lanham Act does not create property rights; it 

merely provides a means of registering and enforcing in the federal courts rights otherwise 

recognized under the common law.” Hair Assocs., Inc. v. Nat’l Hair Replacement Servs., Inc., 

987 F. Supp. 569, 581 (W.D. Mich. 1997). In other words, “[t]he right to a particular mark grows 

out of the mark’s actual use.” Official Pillowtex LLC v. Hollander Home Fashions Corp., 479 

F.Supp.2d 744, 749 (S.D. Ohio 2007) (citing Homeowners Group v. Home Mktg. Specialists, 931 

F.2d 1100, 1104 (6th Cir. 1991)). Similarly unpersuasive is Defendants’ assertion that Plaintiff is 

attempting to enforce a lapsed trademark registration when such a trademark is unenforceable. 

This contention, essentially an abandonment argument, overreaches in positing that § 43(a) of the 

Lanham Act does not afford protection here. There is no evidence of abandonment. Finally, the 

argument that the phrase “Go Bucks” is not protectable under the Lanham Act misses the point of 

the Act; when the phrase is implemented in commercial use, it is likely to cause confusion and 

therefore infringes on Plaintiff’s common law trademark. Again, context matters. 

 Finally, Defendants dubiously argue that they evade liability under the doctrine of aesthetic 

functionality. Reliance on this doctrine is misplaced for two reasons. First, as another judicial 

officer in the Northern District has recognized, “[t]he Sixth Circuit expressly has not adopted the 

concept of aesthetic functionality and has questioned its validity.” Sherwin-Williams Co. v. JP 

Int’l Hardware, Inc., No. 1:13-CV-2064, 2013 WL 6767815, at *3 (N.D. Ohio Dec. 13, 2013) 

(citing Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d 410, 418 (6th Cir. 2012)). 

Second, as Plaintiff correctly points out, the aesthetic functionality doctrine is potentially relevant 

only in the context of trade dress infringement, which is simply not the context at issue here. See 

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WSM, Inc. v. Tenn. Sales Co., 709 F.2d 1084, 1087 (6th Cir. 1983); Esercizio v. Roberts, 944 F.2d 

1235 (6th Cir. 1991). The claims in this case involve trademarks and not the design of the 

products on which those trademarks are presented. 

4. Remaining Issues 

 In light of the above discussion, Plaintiff is entitled to summary judgment on Counts One 

through Four of its amended complaint. Defendants are not entitled to summary judgment on any 

of these claims. These conclusions do not resolve this litigation, however, because several loose 

ends remain. 

One issue is that Plaintiff has combined with its memorandum in opposition to Defendants’ 

motion for summary judgment a motion to strike. (ECF No. 50.) Plaintiff seeks to strike those 

portions of Defendants’ motion for summary judgment briefing that present forfeited affirmative 

defenses, curiously arguing in part that Defendants’ motion is a Federal Rule 12(b)(6) motion that 

should not be converted into a Rule 56 motion. The Court need not strike the targeted content but 

can and has simply addressed the relevant portions of the briefing on their merits (or lack thereof). 

The Court therefore DENIES Plaintiff’s motion to strike. (ECF No. 50.) 

Another issue necessitating discussion is that no party has moved for summary judgment 

on Defendants’ twenty counterclaims. As noted, nineteen of those counterclaims seek 

declaratory judgment, while the remaining counterclaim asserts unfair competition under Ohio 

law. The discussion set forth herein certainly informs those claims, but this Court cannot grant a 

broader summary judgment than requested, and Plaintiff specifically sought only summary 

judgment on its claims, not the counterclaims. (ECF No. 46, at Page ID # 1611 & 1643.) 

Additionally, although today’s decision resolves the issue of liability on Plaintiff’s claims, 

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the issue of damages remains. Plaintiff expressly asks this Court to 

issue an order finding that there is both counterfeiting of the registered Ohio State 

Trademarks and willful infringement of Plaintiff’s common law trademarks, and 

award Plaintiff statutory damages for Defendants’ counterfeiting and violation of 

the rights [sic] of publicity of Urban Meyer, its fees incurred in bringing this 

litigation and a permanent injunction enjoining the Defendants from using the Ohio 

State Trademarks or any other words or signs or symbols or device that suggest an 

affiliation, approval, license, connection, sponsorship or endorsement with Ohio 

State. 

(ECF No. 46, at Page ID # 1643.) The appropriate amount of statutory damages remains 

unbriefed and therefore unresolved by today’s decision. 

 Also in need of disposition is Plaintiff’s request for attorneys’ fees based on its argument 

that this is an exceptional case. In discussing such requests, the Sixth Circuit has explained that 

“the Lanham Act allows [an] award of attorney’s fees to the prevailing party in exceptional cases. 

15 U.S.C. § 1117(a). Although this provision does not define ‘exceptional,’ we have held that ‘a 

case is not exceptional where the trademark infringement was not malicious, willful, fraudulent, or 

deliberate.’ ” Coach, Inc. v. Goodfellow, 717 F.3d 498, 505 (6th Cir. 2013) (quoting U.S. 

Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1192 (6th Cir. 1997)). A defendant can be 

said to be willful when the defendant has ignored actual notice of ongoing infringing activity. Id. 

Additionally, the use of counterfeit marks supports an award of attorneys’ fees. Audi AG v. 

D’Amato, 469 F.3d 534, 551 (6th Cir. 2006) (citing U.S. Structures, Inc., 130 F.3d at 1192). 

 This is an exceptional case that warrants attorneys’ fees. Plaintiff provided Defendants 

repeated actual notice of much of the infringement involved, and even if they had not received 

such notice, no reasonable person would have thought that selling t-shirts with identical marks to 

those licensed and held by Plaintiff was reasonable. Defendants thus knew or had reason to know 

that they were selling counterfeit, infringing goods. The Court in its discretion awards attorneys’ 

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fees under § 1117(a). 

Finally, the question of whether Defendants Skreened and Fox should be jointly and 

severally liable remains extant. In regard to the federal claims, the Court recognizes that “[a]n 

individual corporate officer, director, owner, or employee can be liable for trademark infringement 

by the corporation where the individual is either personally involved in the infringement or is 

willfully blind to infringing activity.” Coach, Inc. v. D & N Clothing, Inc., 2011 WL 2682969, at 

*3 (citing Microsoft Corp. v. Rechanik, 249 F. App’x 476, 478–79 (7th Cir. 2007)). 

The undisputed facts satisfy both possibilities here. Defendant Fox created the Go Bucks 

marijuana leaf design offered for sale by Skreened. Such active and personal involvement 

satisfies the “personally involved” possibility, which Fox appears to concede. (ECF No. 51, at 

Page ID # 1963-64.) The evidence also shows that Fox understood intellectual property enough 

to know that infringement could occur, that he was aware of complaints by rights holders that 

necessitated action, that he was aware of multiple, specific communications from Plaintiff seeking 

to stop the infringing activities, and that although he was aware of licensing, obtaining licenses 

was simply not part of Skreened’s business model. Despite all of this, he owned (and, with a 

period of inactivity, ran) a business that included ongoing infringement while apparently, at best, 

keeping himself in the dark as to the scope of that infringement. But “ ‘ “[o]strich-like” business 

practices amount to willful blindness, which is sufficient to show [the] intent necessary to be a 

contributory infringer’ under the Lanham Act.” Coach, Inc. v. D & N Clothing, Inc., 2011 WL 

2682969, at *4 (quoting Microsoft Corp., 249 F. App’x at 479). Unlike the business owner in 

Coach, Inc. v. D & N Clothing, Inc., there is no evidence here that Fox was similarly potentially 

unaware and substantially involved. The evidence in this case instead shows his awareness and 

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his deliberate inaction or insufficient action to remedy problems. Thus, summary judgment in 

favor of Plaintiff is warranted on this point in regard to the federal claims. 

In regard to the state law claim, Plaintiff fails to present this Court with any argument as to 

why joint and several liability would be appropriate. Instead, Plaintiff only perfunctorily lumps 

in the Ohio Revised Code § 2741.02 claim in with the federal claims in the sub-heading of its 

memorandum in support of its motion for summary judgment. (ECF No. 46, at Page ID # 1641.) 

The actual argument under that sub-heading and in his reply memorandum addresses only joint 

and several liability for the federal claims. (ECF No. 46, at Page ID # 1641-43; ECF No. 53, at 

Page ID # 2003.) This is less than a persuasive way to pursue summary judgment on the state law 

point because the Court is in the business of resolving the legal arguments presented to it, not in 

creating or guessing at an argument for a party, guessing at the likely counterarguments, and then 

passing judgment. The Court denies summary judgment on this point. 

III. Conclusion 

For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART

Plaintiff=s motion for summary judgment (ECF No. 46), DENIES Plaintiff’s motion to strike (ECF 

No. 50), and DENIES Defendants’ motion for summary judgment (ECF No. 48). This Court 

permanently enjoins Defendants from using the Ohio State trademarks or any other words or signs 

or symbols or device that suggest an affiliation, approval, license, connection, sponsorship or 

endorsement with Ohio State. Having decided the liability issues for Plaintiff’s four claims, the 

Court will address the remaining issues of the counterclaims, damages, the amount of attorneys’ 

fees awarded, and the possibility of joint and several liability on Plaintiff’s state law claim with the 

parties during a telephone status conference that will be promptly scheduled. 

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IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

GREGORY L. FROST 

UNITED STATES DISTRICT JUDGE 

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