Penn State v. Vintage Brand — M.D. Pa. Upholds $28K Trademark Verdict, Treats Initial Interest Confusion as a Lens, Not a Standalone Claim

Background

Vintage Brand sells reproductions of historical college merchandise — T-shirts, hats, and prints that recreate the look of Penn State imagery from earlier decades. Penn State sued in 2021, alleging that Vintage Brand’s use of historical Penn State logos, seals, and word marks infringed its trademarks even when offered as “vintage” reproductions and even when sold without official-licensee status.

The case proceeded to a jury trial, which found that Vintage Brand willfully infringed Penn State’s trademarks. The compensatory-damages award was modest: $28,000. Vintage Brand challenged the verdict, attacking the legal sufficiency of the proof of consumer confusion and arguing that Penn State’s reliance on the “initial interest confusion” doctrine required showing intentional deception.

The Court’s Holding

The court denied Vintage Brand’s post-trial motions and upheld the verdict. On the central legal issue, the court rejected the framing that initial interest confusion is a separate cause of action with its own elements. Instead, the court treated “initial interest confusion” as one of several lenses through which a jury can find that the standard multi-factor likelihood-of-confusion test (the Third Circuit’s Lapp factors) is satisfied. There is no requirement of intentional deception specific to initial interest confusion; rather, intent is one factor among many in the overall analysis.

On the evidence, the court found a jury could rationally infer confusion from the record — including testimony about a witness who Google-searched a Vintage Brand item and saw it returned alongside official Penn State merchandise without any clear distinguishing indicator of source. That kind of search-result-confusion narrative, combined with the closeness of the marks and the channel overlap (online apparel retailing), was enough to support the verdict.

Key Takeaways

• Initial interest confusion in the Third Circuit (and likely in jurisdictions following the same multi-factor framework) is best understood as a way to characterize the evidence that satisfies the standard confusion test, not as a doctrinal silver bullet with its own elements.
• Plaintiffs do not have to prove intentional deception to invoke initial-interest evidence. Search-result confusion, channel overlap, and consumer survey evidence can all carry the same analytic weight.
• Vintage and reproduction merchandise sold without university licensing remains a significant litigation risk, even at modest price points and modest damages exposure. The damages award here was small but the willfulness finding has reputational and licensing-leverage consequences.
• Universities and other trademark holders with active licensing programs now have a fresh post-verdict opinion they can cite in future enforcement actions against unauthorized vintage and dupe merchandise.

Why It Matters

The initial interest confusion doctrine has been controversial for two decades. Critics — including a robust academic camp — have argued the doctrine adds nothing to the standard multi-factor confusion test and risks expanding trademark protection to capture momentary, harmless attention-grabbing on the way to a clearly differentiated purchase decision. Penn State v. Vintage Brand implicitly accepts that critique by treating initial interest confusion not as a doctrine in its own right but as one way to satisfy the existing test.

For collegiate licensing programs, the practical message is favorable: jurors are willing to find willful infringement in vintage-merchandise cases, and post-trial motions are unlikely to undo their verdicts on doctrinal grounds. For sellers of vintage or dupe merchandise, the message is to expect continued enforcement and to think carefully about disclaimers, source identification, and channel separation. The $28,000 award is modest, but the willfulness finding can support enhanced damages, attorneys’ fees, and broader injunctive relief in future cases.