At first glance, the Stoneman Douglas High School-branded apparel shown for sale on a Seattle-based retailer's website looks like it could be purchased at the school's store.
Some shirts bear the school's initials, SDHS. Others declare "Property of Stoneman Douglas Eagles" and include an eagle logo.
But look closer. This isn't the lettering and eagle you've been seeing the past year.
South Florida residents have gotten used to seeing MSD apparel, bumper stickers and other products sold to generate funds for the school and survivors of the February 2018 shootings. They are still available, at the school's official apparel store, at www.msdstrong.us. All proceeds stay with the school "to support our teachers and students as we continue to transition back to normalcy," a message on the site says.
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No such pledge is made at the website of an online retailer targeted in an copyright infringement lawsuit filed Feb. 28 by Keiser University, a private not-for-profit college headquartered in Fort Lauderdale.
Keiser's suit, filed in U.S. District Court in Fort Lauderdale, accuses Prep Sportswear and its president, Chad Hartvigson, of illegally selling apparel using its trademarked name and nickname, Seahawks.
The suit claims: "The use of the Keiser Marks, name, Seahawk mascot and Colors create the impression in the mind of the consumer that the source of the goods is Keiser, or a Keiser affiliated, approved, endorsed or licensed partner of Keiser, where no such affiliation, approval or endorsement or license exists, and in fact the names colors and images are used entirely without the Permission of Keiser University, creating confusion in the mind of the consumer."
The retailer even tells customers not to buy the university's licensed apparel, urging on its website, "Avoid long lines at the Keiser University bookstore and shop from home!"
Customers can choose from hundreds, perhaps thousands, of school names from across the country.
Neither Prep Sportswear nor a spokeswoman for Broward County Schools immediately responded to requests for comment about the suit.
The suit accuses Prep Sportswear and Hartvigson of infringing upon "less funded Universities, as well as elementary schools, middle schools and high schools ... intentionally and with far greater fervor," including by counterfeiting Stoneman Douglas High School's "colors, mascot, mascot imagery, and exact match name."
Well-funded pro teams or NCAA colleges that can defend their rights are strategically omitted, the suit states.
All schools, including high schools, middle schools, or private schools have trademark rights to their names and logos, Geoffrey Lottenberg, a partner with the firm Berger Singerman whose practice includes intellectual property law, said in an interview. "They do not have to register with the state or federal government to have rights."
Because the tragedy raised awareness of Stoneman Douglas' name and eagle logo nationally, "their rights reach further but they are also exposed to a wider net of potential infringers," Lottenberg said.
Whether Stoneman Douglas or the Broward County School District should sue over the apparel is a decision they would likely base on how much money they are losing and how much it would it cost to sue, Lottenberg said.
"But the worst thing you can do is nothing. That can quickly erode trademark rights and the ability to go after (infringers) in the future," he said. "You run the risk of a judge in two or three years saying you can't fight now because you didn't then."
Hartvigson and his company have faced several suits in recent years, court records show.
In 2015, Miami Dade Schools sued over availability of apparel with its school trademarks. The case was settled under confidential terms in 2016, and apparel with the district's school names remains available through the site.
A Catholic school in Miami, Belen Jesuit Preparatory School, also sued the company in 2015 but lost when the judge determined it had not established use of its trademark for sale of apparel.
Savannah College of Art and Design initially lost its case on similar grounds, but the ruling was overturned on appeal when it argued it's entitled to trademark rights for future use.
In October, U.S. Supreme Court declined Prep Sportswear's petition asking it to review the case.
