no. 19-3388 united states court of appeals for the …jdlitman/classes/tm/redbubble... · 2019. 9....

No. 19-3388

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

________________

OHIO STATE UNIVERSITY, Plaintiff-Appellant,

v.

REDBUBBLE, INC., Defendant-Appellee.

________________

On Appeal from the United States District Court for the Southern District of Ohio, No. 17-cv-01092

________________

BRIEF FOR AMICI CURIAE UNIVERSITY OF MICHIGAN, MICHIGAN STATE UNIVERSITY, REGENTS OF THE UNIVERSITY OF

MINNESOTA, THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, THE PENNSYLVANIA STATE UNIVERSITY, THE STATE

UNIVERSITY OF NEW JERSEY RUTGERS, THE TRUSTEES OF INDIANA UNIVERSITY, THE TRUSTEES OF PURDUE UNIVERSITY, UNIVERSITY OF IOWA, UNIVERSITY OF KENTUCKY, UNIVERSITY OF NEBRASKA, UNIVERSITY OF NOTRE DAME, AND UNIVERSITY

OF TENNESSEE IN SUPPORT OF APPELLANT ________________

DALE M. CENDALI KEVIN M. NEYLAN, JR. KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 (212) 446-4800

PAUL D. CLEMENT Counsel of Record ERIN E. MURPHY KIRKLAND & ELLIS LLP 1301 Pennsylvania Avenue, NW Washington, DC 20004(202) 389-5000 [email protected]

Counsel for Amici Curiae (Additional Counsel Listed on Inside Cover)

September 5, 2019

Case: 19-3388 Document: 27 Filed: 09/05/2019 Page: 1

mailto:[email protected]

BRIAN T. QUINN Acting Vice President and General

Counsel MICHIGAN STATE UNIVERSITY 426 Auditorium Road, Room 494 East Lansing, Michigan 48824

TIMOTHY G. LYNCH Vice President and General Counsel MAYA R. KOBERSY Associate General Counsel JACK BERNARD Associate General Counsel UNIVERSITY OF MICHIGAN 503 Thompson Street Ann Arbor, Michigan 48109-1340

DOUGLAS R. PETERSON General Counsel CARRIE RYAN GALLIA Associate General Counsel UNIVERSITY OF MINNESOTA Office of the General Counsel 200 Oak Street S.E., Suite 360

Minneapolis, Minnesota 55455

SCOTT RICE Campus Legal Counsel THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS 258 Henry Administration Building 506 South Wright Street Urbana, Illinois 61801

STEPHEN S. DUNHAM Vice President and General Counsel MICHAEL J. BRIGNATI Associate General Counsel THE PENNSYLVANIA STATE UNIVERSITY 227 West Beaver Avenue, Suite 507 State College, PA 16801

JOHN J. HOFFMAN Senior Vice President and General Counsel THE STATE UNIVERSITY OF NEW JERSEY RUTGERS 7 College Avenue Winants Hall, Room 402 New Brunswick, NJ 08901

JACQUELINE A. SIMMONS Vice President and General Counsel THE TRUSTEES OF INDIANA UNIVERSITY Bryan Hall 211 107 S. Indiana Avenue Bloomington, Indiana 47405

TRENTEN D. KLINGERMAN Deputy General Counsel PURDUE UNIVERSITY OFFICE OF LEGAL COUNSEL 610 Purdue Mall West Lafayette, Indiana 47907


CARROLL J. REASONER Vice President for Legal Affairs and General Counsel GAY D. PELZER Deputy General Counsel UNIVERSITY OF IOWA 120 Jessup Hall Iowa City, IA 52242

WILLIAM E. THRO General Counsel DAVID L KINSELLA Senior Associate General Counsel UNIVERSITY OF KENTUCKY Office of Legal Counsel 301 Main Building Lexington, Kentucky 40506

JAMES P. POTTORFF, JR. Vice President and General Counsel UNIVERSITY OF NEBRASKA 3835 Holdrege Street Lincoln, Nebraska 68583

MARIANNE CORR Vice President and General Counsel UNIVERSITY OF NOTRE DAME 203 Main Building Notre Dame, Indiana 46556

MATTHEW M. SCOGGINS, III FRANK H. LANCASTER THE UNIVERSITY OF TENNESSEE Office of the General Counsel 719 Andy Holt Tower Knoxville, TN 37996


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1(a), amici certify that

they do not have parent corporations and that no publicly held corporation owns

more than ten percent of their stock.


TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT .......................................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES .................................................................................... iii

INTERESTS OF AMICI ........................................................................................... 1

SUMMARY OF ARGUMENT ................................................................................. 3

ARGUMENT ............................................................................................................ 6

I. Redbubble Is Engaged In Blatant Trademark Infringement ........................... 6

A. The Lanham Act Provides Broad Protection Against the Unlawful “Use” of Trademarks ............................................................ 6

B. Redbubble “Uses” OSU’s and Amici’s Trademarks in a Variety of Interrelated, Unlawful Ways ................................................ 9

1. Redbubble sells infringing goods ............................................ 10

2. Redbubble manufactures infringing goods .............................. 18

3. Redbubble uses infringing marks as an integral part of selling and advertising Redbubble services ............................. 21

C. Redbubble’s Decision to Partner With Third Parties Does Not Diminish Its Liability for Direct Trademark Infringement ................ 22

II. The Decision Below Will Have Serious, Adverse Consequences For Amici And Their Trademarks ....................................................................... 30

CONCLUSION ....................................................................................................... 33

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE


TABLE OF AUTHORITIES

Cases

1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229 (10th Cir. 2013) ...........................................................................28

Am. Broad. Cos. v. Aereo, Inc., 573 U.S. 431 (2014) ............................................................................................26

Bailey v. United States, 516 U.S. 137 (1995) ........................................................................................7, 30

Bird v. Parsons, 289 F.3d 865 (6th Cir. 2002) ...............................................................................25

Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) .............................................................................................. 9

Born to Rock Design Inc. v. CafePress.com, Inc., No. 10 CIV. 8588 CM, 2012 WL 3954518 (S.D.N.Y. Sept. 7, 2012) ................24

Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) ................................................................................. 5, 25, 26

Coach, Inc. v. Goodfellow, 717 F.3d 498 (6th Cir. 2013) ........................................................................ 27, 28

Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124 (2015) ........................................................................................31

El Greco Leather Prods. Co. v. Shoe World, Inc., 806 F.2d 392 (2d Cir. 1986) .................................................................................. 8

GMA Accessories v. BOP, LLC, 765 F. Supp. 2d 457 (S.D.N.Y. 2011) .................................................................25

Grubbs v. Sheakley Grp., Inc., 807 F.3d 785 (6th Cir. 2015) ............................................................ 27, 28, 29, 30

Hard Rock Cafe Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143 (7th Cir. 1992) ............................................................................... 8


H-D U.S.A., LLC v. SunFrog, LLC, 311 F. Supp. 3d 1000 (E.D. Wis. 2018) ..............................................................24

Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) .............................................................................................. 7

Lorillard Tobacco Co. v. Amouri’s Grand Foods, Inc., 453 F.3d 377 (6th Cir. 2006) ...........................................................................8, 18

Maracich v. Spears, 570 U.S. 48 (2013) ................................................................................................ 8

Matal v. Tam, 137 S. Ct. 1744 (2017) ......................................................................................6, 9

Milo & Gabby LLC v. Amazon.com, Inc., 693 F. App’x 879 (Fed. Cir. 2017) ......................................................................25

S. Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018) ........................................................................................31

Smith v. United States, 508 U.S. 223 (1993) ........................................................................................7, 30

Statutes

15 U.S.C. §1114 ...................................................................................................9, 21

15 U.S.C. §1114(1)(a) ...................................................................................... passim

15 U.S.C. §1114(2)(A) ............................................................................................... 8

15 U.S.C. §1127 ............................................................................................... passim

Other Authorities

Black’s Law Dictionary (10th ed. 2014) ..................................................................25

Black’s Law Dictionary (6th ed. 1990) ...................................................................... 7

Dean Blake, Redbubble Acquires US Rival for $57.7 Million, Inside Retail Australia (Oct. 25, 2018), https://bit.ly/2PSC94c ...................................... 2


Edward S. Rogers, Comments on the Modern Law of Unfair Trade, 3 Ill. L. Rev. 551 (1909) ........................................................................................ 7

Independent Art on Awesome Stuff, Season 3, Redbubble: RBTV (Dec. 11, 2017), https://rdbl.co/3052rFv ......................................................................20

J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition (5th ed. 2018) ......................................................................... passim

On Demand: The Market Opportunity, Season 1, Redbubble: RBTV (Dec. 5, 2017), https://rdbl.co/3052rFv ..............................................................20

Quality, Service, Control: The Redbubble Supply Chain, Season 4, Redbubble: RBTV (Dec. 11, 2017), https://rdbl.co/3052rFv .............................20

Redbubble Products: Independent Art on Awesome Stuff, Season 3, Redbubble: RBTV (Dec. 11, 2017), https://rdbl.co/3052rFv ............................. 11


INTERESTS OF AMICI

Amici are thirteen of the nation’s leading universities. Collectively, they

educate more than 650,000 students and provide academic services to millions more

through online learning and alumni outreach. While their primary mission is

educational, amici offer countless extracurricular activities, from athletics to

zoology clubs and everything in between. These activities generate considerable

school spirit among students, alumni, friends, and supporters, many of whom

express that spirit by purchasing merchandise highlighting their university

affiliation.1

Amici have all registered numerous trademarks associated with their

universities, ranging from the name of each University to its slogans and mascots.

Amici have a vital interest in preserving the integrity of those marks and ensuring

they are associated with quality goods and services and not associated with

derogatory or inappropriate content. Amici sell authorized trademarked goods

through brick-and-mortar stores, including university bookstores, and derive even

more revenue through authorized Internet retailers. Amici plow such revenues back

into their universities to fund scholarships, research, and student services. Amici’s

1 No counsel for any party authored this brief in whole or in part, and no counsel

or party other than those listed made a monetary contribution intended to fund the preparation or submission of this brief. The parties have consented to the filing of this brief.


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trademark-related revenues fuel a virtuous cycle in which hard work in the

classrooms generates school spirit, which generates sales of trademarked goods,

which generates revenues to enhance the student experience.

The decision below and Redbubble’s disregard for trademarks threaten

amici’s interests in their marks. Redbubble’s website is rife with trademarked

images. Redbubble uses amici’s trademarks to sell knockoff products without

warning to consumers or compensation to amici. Victimized by these practices, The

Ohio State University (“OSU”) sued Redbubble for trademark infringement. But

the district court seized on select—and largely irrelevant—details of Redbubble’s

business model to reach the counterintuitive conclusion that Redbubble does not sell

infringing items at all. That decision is profoundly wrong and provides a roadmap

for evading the basic protections of the Lanham Act. Amici thus file this brief to

make clear the stakes of the current dispute, which affects Wolverines, Boilermakers,

and Hoosiers as much as Buckeyes, and to underscore the Lanham Act’s broad

protections against the unauthorized use of trademarks in goods and services.

BACKGROUND

Redbubble is an online retailer whose stated mission is “to disrupt mainstream

retail commerce.” Dean Blake, Redbubble Acquires US Rival for $57.7 Million,

Inside Retail Australia (Oct. 25, 2018), https://bit.ly/2PSC94c. It does so by offering

services called “print-on-demand” or “manufacturing-on-demand.” Redbubble’s


https://bit.ly/2PSC94c

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website advertises a vast catalog of designs and images, alongside a large virtual

inventory of physical merchandise (t-shirts, mugs, posters, and more). Redbubble

customers mix and match the images and merchandise to create a product to their

liking—e.g., an image of a cat on a sweatshirt, or a floral design on throw pillows—

and then pay Redbubble to handle the manufacture of the finished product and its

delivery to their address. Redbubble is thus in the (lucrative) business of creating

and selling finished goods custom-made to customers’ individualized demands.

That is all well and good—except when the finished goods made and sold

through Redbubble are infringing. Such is the case here. As OSU explains,

Redbubble is responsible for the manufacture and sale of a bevy of products that

infringe OSU’s trademarks. Amici unfortunately find themselves in the same

position, as this brief’s Addendum illustrates. Amici have found hundreds of

products for sale on Redbubble’s website bearing their trademarks—all

unauthorized and uncompensated.

SUMMARY OF ARGUMENT

The Lanham Act protects trademarks broadly and robustly: It renders liable

for infringement “[a]ny” person who, without authorization, “use[s]” another’s

marks “in commerce ... in connection with the sale, offering for sale, distribution, or

advertising of any goods or services on or in connection with which such use is

likely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. §1114(1)(a).


https://www.law.cornell.edu/uscode/text/15/1114

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As this Court has recognized, that expansive language covers essentially all

unauthorized use of trademarks in commerce, whether by selling or manufacturing

goods bearing infringing marks, using infringing marks to advertise goods or

services, or providing a service that uses infringing marks.

Redbubble commits every one of those illicit acts. Redbubble offers its

customers their choice from a catalog of designs submitted by third-party “artists,”

and a catalog of mock-ups showing (to use its own words) “Redbubble Products”

imprinted with those designs, and then (again, to use its own words) “works closely”

with third-party partners to facilitate the manufacture and delivery of whatever

finished “Redbubble Product” the customer custom-orders. If a brick-and-mortar

store sold custom-made t-shirts bearing infringing trademarks that it hired a third

party to print, there can be no serious dispute that the store would be liable for

trademark infringement—even if it also hired a third party to ship the finished

products instead of requiring customers to pick them up at the store. That Redbubble

accomplishes the same thing over the Internet does not make it any less liable for

infringement.

The district court concluded otherwise because it misunderstood what

Redbubble does and what the Lanham Act prohibits. As to the former, the court

mistook Redbubble for a mere passive marketplace that facilitates the sale of

products created, marketed, and sold entirely by third parties. In fact, Redbubble is


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in the business of creating products, offering its customers the service of selecting a

“Redbubble Product” onto which Redbubble guarantees and facilitates the printing

of the customer’s chosen design. That is a valuable service, to artist and customer.

But when the artwork in question is an infringing mark, then Redbubble’s decision

to (once more, in its own words) “use, reproduce, distribute, prepare derivative

works of and display the content of” that infringing mark squarely violates the Act.

The district court’s contrary conclusion rests on the mistaken view that the

Lanham Act outlaws only the direct sale of infringing goods by one who takes title

to those goods before delivering them to the purchaser. But the plain text of the Act

provides much more expansive protection: it reaches any unauthorized “use in

commerce” of a mark “in connection with the sale, offering for sale, distribution, or

advertising of any goods or services.” 15 U.S.C. §1114(1)(a). The Supreme Court

has elsewhere warned against adopting narrow conceptions of “sales” when doing

so would defeat the statutory purpose. See, e.g., Christopher v. SmithKline Beecham

Corp., 567 U.S. 142, 159-61 (2012). That admonition applies fully here, for the

Act’s plain text sweeps more broadly than sales, and the district court’s crabbed

conception of sales provides a roadmap for evading its critical protections.

The district court’s erroneous decision will have devastating effects on amici

and their trademarks. Unlike commercial enterprises, amici use the sale of their

trademarked goods to further their core educational mission. The sale of


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trademarked goods is critical to translating school spirit into educational benefits.

The Internet has been a boon for those efforts, but it has also complicated amici’s

ability to enforce trademarks and ensure they are associated with quality products

and positive messages. The decision below exacerbates those difficulties by

allowing an entity that plainly uses unlicensed trademarks to sell goods and provide

services with impunity. The decision cannot stand.

ARGUMENT

I. Redbubble Is Engaged In Blatant Trademark Infringement.

The Lanham Act was written to prohibit the very kind of unauthorized,

systematic, and interrelated “use” of trademarks that Redbubble exemplifies.

Redbubble sells and manufactures infringing goods and provides a lucrative service

facilitating the same. At every step Redbubble “uses” the designs featured on its

website. When those designs infringe another’s trademarks, Redbubble becomes

directly liable. It is really that simple.

A. The Lanham Act Provides Broad Protection Against the Unlawful “Use” of Trademarks.

“Trademarks and their precursors have ancient origins, and trademarks were

protected at common law and in equity at the time of the founding of our country.”

Matal v. Tam, 137 S. Ct. 1744, 1751 (2017). Consistent with those common-law and

equitable roots, courts did not let changing technologies or evasive business models

end-run meaningful protections. E.g., Edward S. Rogers, Comments on the Modern


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Law of Unfair Trade, 3 Ill. L. Rev. 551, 553 (1909) (explaining how courts “adapted

themselves … to keep pace with the progress and ingenuity of the infringer”). Today,

trademarks are given broad protection under the Lanham Act. The Act even contains

an “‘unusual, and extraordinarily helpful,’ detailed statement of the statute’s

purposes,” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 131

(2014), explaining Congress’ intent, inter alia, to “mak[e] actionable the deceptive

and misleading use of marks in … commerce,” “to protect persons engaged in …

commerce against unfair competition,” and “to prevent fraud and deception in …

commerce by the use of reproductions, copies, counterfeits, or colorable imitations

of registered marks,” 15 U.S.C. §1127.

The Act thus renders liable for trademark infringement anyone who, without

authorization, “use[s] in commerce ... a registered mark in connection with the sale,

offering for sale, distribution, or advertising of any goods or services on or in

connection with which such use is likely to cause confusion, or to cause mistake, or

to deceive.” Id. §1114(1)(a). As the Supreme Court has observed, the verb “use” is

a broad one, whose ordinary meaning includes “‘[t]o make use of; to convert to one’s

service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by

means of.’” Smith v. United States, 508 U.S. 223, 229 (1993) (quoting Black’s Law

Dictionary 1541 (6th ed. 1990)); see also Bailey v. United States, 516 U.S. 137, 145

(1995). The phrase “in connection with” is likewise expansive, conveying that “use”


https://www.law.cornell.edu/uscode/text/15/1114

8

should be understood flexibly, to reach all commercial activities related to the Act’s

objectives. See, e.g., Maracich v. Spears, 570 U.S. 48, 59-60 (2013).

Consistent with the statute’s expansive text, courts have recognized many

ways one can “use” a mark “in commerce” under §1114. Most obviously, someone

who sells goods that bear infringing marks “uses” those marks “in commerce,” and

is subject to strict liability for the resulting infringement. Lorillard Tobacco Co. v.

Amouri’s Grand Foods, Inc., 453 F.3d 377, 381 (6th Cir. 2006); El Greco Leather

Prods. Co. v. Shoe World, Inc., 806 F.2d 392, 396 (2d Cir. 1986); Hard Rock Cafe

Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143, 1152 n.6 (7th Cir. 1992);

4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition §25:27

(5th ed. 2018). In addition, when the object of the sale is a “good,” one “use[s]” an

infringing mark by causing it to be “placed in any manner on the goods or their

containers or the displays associated therewith or on the tags or labels affixed

thereto.” 15 U.S.C. §1127. It is also “use” of an infringing mark to “create,

manufacture or package the infringing items,” even if someone else sells them.

Lorillard, 453 F.3d at 381; 4 McCarthy, supra, §§25:26, 25:28; see also 15 U.S.C.

§1114(2)(A). And with respect to services, one “uses” a mark, at a minimum, if one

“use[s] or display[s] [the mark] in the sale or advertising of services.” 15 U.S.C.

§1127.


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In every commercial context it is critical for courts to consider the consumer’s

perspective when deciding whether someone has “use[d]” a mark within the

meaning of the Lanham Act. After all, §1114 targets activities that are “likely to

cause confusion, or to cause mistake, or to deceive,” id. §1114, and one of trademark

law’s principal objectives is to “help[] consumers identify goods and services that

they wish to purchase, as well as those they want to avoid,” Tam, 137 S. Ct. at 1751;

see, e.g., Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 (1989)

(“The law of unfair competition has its roots in the common-law tort of deceit: its

general concern is with protecting consumers from confusion as to source.”); 1

McCarthy, supra, §2:7 (“The keystone of that portion of unfair competition law

which relates to trademarks is the avoidance of a likelihood of confusion in the minds

of the buying public.”). To do that, courts must be attuned to market realities, and

must assess what role the conduct at issue plays in perpetuating the evils of

trademark infringement: injury to consumers and competition.

B. Redbubble “Uses” OSU’s and Amici’s Trademarks in a Variety of Interrelated, Unlawful Ways.

The undisputed facts confirm that Redbubble “uses” OSU’s (and amici’s)

trademarks within the meaning of the Lanham Act. Contrary to the district court’s

misperceptions, Redbubble is no passive marketplace in which consumers buy goods

created, advertised, and sold by third parties. Redbubble sells its customers goods

that do not yet exist, and that Redbubble will bring into creation. It persuades its


10

customers to purchase those goods by using artwork that includes infringing marks,

it displays images of the many not-yet-extant “Redbubble Products” emblazoned

with those infringing marks, and it promises to get its customers whatever final

“Redbubble Products” bearing those infringing marks they choose to order. In the

face of all that, it would blink reality to suggest that Redbubble is not “using” those

infringing marks “in connection with the sale, offering for sale, distribution, or

advertising of any goods or services[.]” 15 U.S.C. §1114(1)(a).

1. Redbubble sells infringing goods.

First, Redbubble is in the business of selling infringing goods. Redbubble

holds out the products it advertises for custom-order as Redbubble’s products, not

the products of third-party sellers—because that is exactly what they are.

That is clear from Redbubble’s own website, which refers to available

products as, for example, “Redbubble garments,” e.g., OSU Summary Judgment

Reply Exhibit 23, RE39-1, PageID#721; see also id. PageID##720-21, and “our

products,” e.g., True Declaration Exhibit M, RE17-5, PageID#301. The Redbubble

website even features a video entitled “Redbubble Products: Independent Art on

Awesome Stuff,” in which Redbubble’s General Manager of Products boasts that

“the type of products we sell at Redbubble range from many different types of

apparel, home wares, wall art, stickers, bags, any accessible product that can be

produced on demand,” and goes on to explain that “we go through many different


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processes” “[t]o select the products at Redbubble.” Redbubble Products:

Independent Art on Awesome Stuff, Season 3, Redbubble: RBTV (Dec. 11, 2017), at

0:09-0:24, https://rdbl.co/3052rFv.

Redbubble also maintains an “Our products” section of its website, which

refers to “Our range” of merchandise:


https://rdbl.co/3052rFv

12

Plainly, then, Redbubble—not the artists whose artwork Redbubble imprints on

those products—is the one that selects the products it sells.

Redbubble also surrounds the products on its site with Redbubble’s logo and

marketing materials. In some cases, Redbubble even places its own logo directly

onto its images of infringing designs. For example:


13


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That Redbubble itself is selling these infringing products is equally clear from

how Redbubble describes the artists’ role. Redbubble does not claim, or even imply,

that the products are sold by the artists who supply the images Redbubble displays.

Instead, Redbubble gives artists credit only for designing the products Redbubble

sells, designating the “Redbubble Product” merely as “Designed by [artist

username],” e.g., “Designed by Dragonball Z” (as in the Michigan t-shirt below) or

“Designed by Purple Lunchbox” (as in the Purdue puppy t-shirt above). For

instance:


15


16

Far from suggesting the artist is the seller of the advertised goods, the “designed by”

designation confirms the opposite—as does the fact that all of the mock-ups feature

the same models, regardless of design.

The Redbubble customer’s purchasing experience reinforces what the website

makes plain. Customers give their credit card information to Redbubble, they

receive a Redbubble invoice, and Redbubble’s name appears on their credit card

statement. Nunn Declaration, RE28, PageID#569; OSU Summary Judgment Reply,


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RE39, PageID##609-610. Redbubble is the only entity that communicates with

customers, and it does so throughout the process. Redbubble places its name and

trademark on the packaging of shipped goods, and the return address is Redbubble’s

corporate address. Id. Redbubble also places its name and trademark on the goods

themselves, using removable stickers and tags. Id. PageID#609. After goods are

delivered, Redbubble provides customer service, and Redbubble processes return,

exchange, and replacement requests. Redbubble Summary Judgment Motion, RE23,

PageID#480. If a customer returns or exchanges a product, Redbubble takes

possession of the items, and Redbubble has the right to “dispose of [them] ... in any

manner we see fit.” User Agreement, RE24-3, PageID#533.

Other indicia reinforce that Redbubble sells the products it advertises on its

website. For one, notwithstanding Redbubble’s assertion that artists have total

control to dictate retail prices, in reality Redbubble sets a floor and a ceiling on retail

prices, id. PageID#537; Luthra Declaration, RE26, PageID#561, and Redbubble can

unilaterally apply sales, discounts, and coupons that reduce the prices customers

pay—and the margins artists receive—without notice to (much less approval from)

artists, True Declaration Exhibit M, RE17-5, PageID##301-02. For another,

Redbubble’s User Agreement repeatedly distinguishes between “content” and

“art”—i.e., the designs that artists upload to the site—and “products” or “physical

products,” i.e., the finished goods customers actually purchase. The Agreement tells


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artists that “you may offer your art for sale as part of the sale of a physical product.”

User Agreement, RE24-3, PageID#531 (emphasis added); id. PageID#532.

Meanwhile, the main section addressed to customers is titled “Purchasing a Product

on Redbubble.” Id. (emphasis added).

In short, to claim that Redbubble does not “sell” the goods that Redbubble

markets as its own—goods that do not even exist until customers custom-order them

from Redbubble—is to ignore commercial reality, contradicting the Lanham Act’s

purposefully broad and flexible trademark-protection regime. Redbubble is no

virtual landlord, providing online real estate for artists to hawk their wares. Nor is

Redbubble akin to an auctioneer or a broker, who merely helps buyers and sellers

find one another and transact on mutually agreeable terms. In every meaningful

sense, Redbubble is just like a brick-and-mortar store that sells custom-ordered

goods selected from a catalog of artwork and a catalog of goods, and then uses a

third party to fulfill and ship those orders. Such a store would undoubtedly be liable

for trademark infringement if it sold, offered for sale, advertised, or distributed goods

bearing infringing artwork. Neither law nor logic supports treating Redbubble

differently just because it conducts its infringing activities online.

2. Redbubble manufactures infringing goods.

Redbubble is also liable for trademark infringement because it manufactures

the infringing goods it sells. Lorillard, 453 F.3d at 381; 4 McCarthy, supra, §§25:26,


19

25:28; 15 U.S.C. §1127. In stark contrast to entities like eBay and Amazon,

Redbubble is contractually bound to ensure the manufacture and printing of every

item sold on its website, and Redbubble is actively involved in the manufacturing

and printing process. Redbubble signs a contract with every artist who utilizes its

services, in which artists pay Redbubble “to facilitate marketing and sale of [their]

art on a physical product and to arrange for manufacture of the physical product ...

once an order has been made through www.redbubble.com.” User Agreement,

RE24-3, PageID#536; see also id. And Redbubble has discretion to “facilitate such

... manufacturing in accordance with reasonable business practices.” Id. Redbubble

has made a business decision to ensure that goods ordered on its website are

manufactured and printed, and it can be sued for breach of contract if it fails.

By its own telling, Redbubble takes an active role in the printing and

manufacture of Redbubble goods. Redbubble routinely highlights “the 3rd party

printers we work with,” boasting that “[w]e have a global network of 3rd party

printers that are masters at their craft.” OSU Summary Judgment Reply Exhibit 25,

RE39-1, PageID#728; id. PageID#720 (“For our basic mens, womens & kids apparel

we use direct to garment printing”). Redbubble executives elaborate in videos

featured on its website. For instance, in one video titled “On Demand: The Market

Opportunity,” Redbubble’s Senior Strategy Manager explains that “it’s actually

really important for us to have a global network of fulfillers. These are companies


20

that we partner with to produce our goods.” On Demand: The Market Opportunity,

Season 1, Redbubble: RBTV (Dec. 5, 2017), at 1:54-2:01, https://rdbl.co/3052rFv

(emphasis added). In another video titled “Redbubble Products: Independent Art on

Awesome Stuff,” Redbubble’s General Manager of Products emphasizes that “we

work really closely with our suppliers to make sure the product is suitable to the

local market,” “we work with them to design and develop the product,” and “we

look into printer innovations, new things that are happening in the printing space.”

Independent Art on Awesome Stuff, Season 3, Redbubble: RBTV (Dec. 11, 2017), at

0:48-0:53, 1:08-1:11, 0:26-0:31, https://rdbl.co/3052rFv. In yet another video titled

“Quality, Service, Control: The Redbubble Supply Chain,” Redbubble’s Senior Vice

President of Global Operations attests that “[w]e also have our Quality Manager

physically visit every single fulfiller and perform quality controls at the location of

printing to make sure that the blank products, whether it’s a t-shirt or a phone case,

all the printing performs to our expectations.” Quality, Service, Control: The

Redbubble Supply Chain, Season 4, Redbubble: RBTV (Dec. 11, 2017), at 1:59-

2:16, https://rdbl.co/3052rFv.

In short, as a matter of law and fact, Redbubble is in the business of printing

and manufacturing the goods that it sells. That is what Redbubble tells its customers,

because that is what Redbubble does. And when the marks that Redbubble promises





21

to ensure those goods bear are infringing, Redbubble is once again engaged in

prototypical trademark infringement.

3. Redbubble uses infringing marks as an integral part of selling and advertising Redbubble services.

In addition to its unlawful use of OSU’s and amici’s marks in the sale and

manufacture of infringing goods, Redbubble “uses” infringing marks “in connection

with the sale, offering for sale, distribution, or advertising of … services.” 15 U.S.C.

§1114(1)(a) (emphasis added). Redbubble provides customers the service of

facilitating the creation of products bearing the artwork displayed on its website. In

Redbubble’s words, “Redbubble provides a range of services (the ‘Redbubble

service’) which ... enable you to publish, sell, discuss and purchase art ... and receive

the benefits of Redbubble’s facilitation of product fulfilment, including payment

processing, customer services, [and] third party product manufacturing.” User

Agreement, RE24-3, PageID#531; see also id. PageID#536. And to provide that

service, Redbubble “uses” the artwork in myriad ways, collecting it, displaying it,

and featuring it in product advertisements by creating mock-ups of what products

bearing a design will look like. That is a valuable service, to artists and customers.

But when the artwork is an infringing trademark, then Redbubble is liable for the

unauthorized “use” of that mark “in connection with” the provision of Redbubble

services. 15 U.S.C. §1114; id. §1127 (with respect to “services,” a mark is “use[d]

in commerce ... when it is used or displayed in the sale or advertising of services”).


22

Redbubble recognizes that it could not provide the “Redbubble service”

without using its artists’ designs. Consider the Service Agreement Redbubble makes

its artists sign, which provides: “By submitting listings to Redbubble, you grant

Redbubble a non-exclusive, worldwide, royalty-free, sublicense[-]able and

transferable license to use, reproduce, distribute, prepare derivative works of and

display the content of such listings in connection with Redbubble’s ... services and

business in facilitating the sale of your product.” User Agreement, RE24-3,

PageID#533 (emphasis added); see also id. PageID#536. One need not read beyond

the first of those licensed activities—the “license to use”—to see the statutory

violation. As the face of that agreement makes clear, even Redbubble recognizes

that it must be able “to use, reproduce, distribute, prepare derivative works of and

display the content” of the artwork for its “services and business” to thrive.

The unlicensed “use” of trademarks in providing services is a classic form of

trademark infringement. This is obvious in the real world. A company that, without

a license, uses a trademarked image of a Wolverine or Boilermaker to market

plumbing services is every bit the infringer as a retailer selling unlicensed t-shirts.

The result should be no different just because the service is provided online.

C. Redbubble’s Decision to Partner With Third Parties Does Not Diminish Its Liability for Direct Trademark Infringement.

Redbubble’s principal response to all of this is to insist that it is not the one

doing the infringing, because it gets its artwork from others and it outsources the


23

manufacture and delivery of the infringing goods that it sells to third parties. But

the precise details of how Redbubble supplies its infringing service cannot obscure

Redbubble’s direct involvement in every aspect of the goods and service that it sells.

And in all events, those details make no difference under this Court’s precedents.

1. In insisting that it bears no responsibility for the sale of the “Redbubble

Products” that it offers and advertises on its website, Redbubble points primarily to

Clause 3.5 of its “Services Agreement”—a contract between Redbubble and

artists—which declares that “[a]ll items purchased from the website are

manufactured pursuant to arrangements with third party suppliers under your

instructions. This means that title and risk for loss for such items pass from you to

the customer/purchaser without passing through us prior to the goods being

delivered to the customer.” User Agreement, RE24-3, PageID#537. According to

Redbubble, because it has structured its business to avoid ever taking title to the

goods it sells, it bears no responsibility for selling them.

At the outset, it is hard to see how that makes any difference to consumers.

That contract language is almost entirely invisible to customers (it appears in part of

a contract that is only between Redbubble and artists, and customers are not required

to display it on their screens before completing a purchase), and it cannot possibly

counteract the strong impression that Redbubble has cultivated through its website

and purchasing experience that Redbubble is the one selling the products. Given


24

that consumer perception is trademark law’s chief concern, the Lanham Act cannot

be read to permit Redbubble to hold itself out as the seller of goods—thereby

boosting its revenue from sales—while dodging sellers’ liability by invoking a

buried contract provision that has no bearing on consumer perception or commercial

reality.

Moreover, Redbubble’s argument ignores that, unlike a passive marketplace,

Redbubble is selling custom-order goods that do not yet exist. Neither Redbubble

nor the district court has identified a single case in which a party engaged in selling

made-to-order infringing goods was found not liable simply because it disclaimed

taking title to the finished products. That is because courts considering custom-order

print-on-demand services like Redbubble’s have (at least until now) uniformly and

easily concluded that such services were using the marks. See, e.g., H-D U.S.A.,

LLC v. SunFrog, LLC, 311 F. Supp. 3d 1000, 1029-30 (E.D. Wis. 2018) (print-on-

demand service that “exert[ed] control over nearly every aspect of the advertising,

sale, and manufacture of the infringing goods, save designing the mockups,” was,

“[b]y any measure … us[ing] the … Marks”); Born to Rock Design Inc. v.

CafePress.com, Inc., No. 10 CIV. 8588 CM, 2012 WL 3954518, at *4-6 (S.D.N.Y.

Sept. 7, 2012) (service that “imprint[ed] the designs on merchandise and ship[ped]

that merchandise to customers” was engaged in “use in commerce” of marks).


25

Rather than confront those cases head-on, the district court pointed to cases

involving passive auction sites that did nothing more than provide a marketplace for

third parties to connect and transact on mutually agreeable terms. See, e.g., Bird v.

Parsons, 289 F.3d 865, 877 (6th Cir. 2002) (holding that auction site for domain

names did not use names); Milo & Gabby LLC v. Amazon.com, Inc., 693 F. App’x

879 (Fed. Cir. 2017) (holding that Amazon is not a “seller” of goods that third parties

use its marketplace to sell); GMA Accessories v. BOP, LLC, 765 F. Supp. 2d 457

(S.D.N.Y. 2011) (denying summary judgment against showroom that third-party

manufacturers used to display infringing merchandise to prospective purchasers).

Whatever relevance the title inquiry may have in that decidedly different context, it

has none here, where the site is selling the service of facilitating the creation of

infringing goods.

Indeed, even those cases acknowledge “that a party might be considered a

seller or in the same position as a seller under some circumstances even when not

transferring title.” Milo & Gabby, 693 F. App’x at 888-89; see also, e.g.,

Christopher, 567 U.S. at 159-61; Black’s Law Dictionary 1537 (10th ed. 2014)

(defining “sale” to include “consignment sale,” which means “[a] sale of an owner’s

property ... by a third party entrusted to make the sale”). A seller that never takes

title to the infringing goods it sells only because it subcontracts their manufacture

and shipment is plainly one of those circumstances, particularly when that party has


26

done so much to convey that it is in fact the seller. Any “formalistic argument” to

the contrary would be “inconsistent with the realistic approach that the [statute] is

meant to reflect.” Christopher, 567 U.S. at 167; cf. Am. Broad. Cos. v. Aereo, Inc.,

573 U.S. 431, 443-44, 446-47, 450-51 (2014).

The same is true with respect to Redbubble’s manufacturing. Here too, it

makes no difference that Redbubble partners with third parties to carry out its self-

appointed obligation to see that “Redbubble Products” are printed and manufactured

in accordance with its customers’ wishes. The Lanham Act imposes liability on

those who cause infringing marks to be “placed in any manner on the goods” that

are sold in commerce. 15 U.S.C. §1127 (emphasis added). Partnering with a third-

party fulfiller, like using an algorithm or computer-automated technology, is simply

one “manner” of accomplishing that impermissible end. Indeed, no one would

seriously claim that a brick-and-mortar store that sold clothing bearing custom-order

infringing marks could escape liability by outsourcing the printing of the marks to a

third party with whom it “worked really closely” to oversee quality. Certainly

Redbubble’s decision to partner with third parties makes no difference to consumers

who are misled by deceptive marks, or rival retailers who pay for licenses and are

victimized by Redbubble’s unfair competition, or trademark owners like amici

whose rights are infringed and whose goodwill is devalued. The Lanham Act places


27

the focus where it belongs: on the party who, as a matter of law and fact, is

responsible for the product’s manufacture and the mark’s unlawful placement.

2. In all events, these details are irrelevant, for Redbubble would still be

liable for direct trademark infringement even if one were to regard the artists as the

“real” sellers, or the third-party fulfillers as the “real” manufacturers of “Redbubble

Products.” Even then, Redbubble would be directly liable for the unlawful “use” of

OSU’s and amici’s trademarks because “[t]his Circuit allows plaintiffs to hold

defendants vicariously liable for trademark infringement under the Lanham Act

when the defendant and the infringer have an actual or apparent partnership, have

authority to bind one another in transactions, or exercise joint ownership or control

over the infringing product.” Grubbs v. Sheakley Grp., Inc., 807 F.3d 785, 793 (6th

Cir. 2015); Coach, Inc. v. Goodfellow, 717 F.3d 498, 503 (6th Cir. 2013); 4

McCarthy, supra, §25:22; id. §25:23 (discussing related concept of joint-tortfeasor

liability for trademark infringement). Redbubble’s relationship with artists readily

satisfies that standard, as does its relationship with fulfillers, and either is sufficient

to render Redbubble liable for direct trademark infringement committed by its agents

and joint tortfeasors.2

2 Vicarious liability “is a species of secondary liability,” Coach, 717 F.3d at 503,

and here it would function as a form of liability for direct infringement, rendering Redbubble liable by imputing to it the acts of direct infringement committed by artists, third-party fulfillers, or both. Likewise, in Grubbs a non-party committed direct violations of the Lanham Act and the plaintiffs sought to hold defendants liable


28

With respect to Redbubble and artists, their relationship checks all the relevant

boxes. For one, the Redbubble website clearly conveys that Redbubble and artists

function as partners in the creation of infringing goods. And in fact they do so

function, with artists supplying the designs and Redbubble supplying the physical

materials and ensuring their combination into finished products. Redbubble also has

express authority to bind artists in transactions. The Services Agreement artists sign

provides that Redbubble, “acting as independent contractor ... will market to and

obtain orders from customers for the purchase of your products over the website,”

and when Redbubble executes a sale, artists are bound to supply their design to the

customer who interacted with Redbubble on whatever terms Redbubble offered.

User Agreement, RE24-3, PageID#536. Indeed, as noted, Redbubble can

unilaterally change the retail price customers pay, and the margins artists receive,

thereby binding artists to a critical sales term without notice or approval. Id.

because the defendants and the non-party had formed an apparent partnership. 807 F.3d at 792-93. After holding that the defendants were subject to liability based on that apparent partnership, this Court analyzed the non-party’s conduct under the ordinary principles of direct liability, id. at 793-98, ultimately holding that “Plaintiffs have ... stated a claim for improper use of trade name and false designation of origin for which the Sheakley Entity Defendants may be held vicariously liable,” id. at 798. Hence, Redbubble’s liability for the direct infringement of its partners would not implicate the doctrine of contributory infringement. See also, e.g., Coach, 717 F.3d at 503 (recognizing vicarious and contributory liability are different); 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1249 (10th Cir. 2013); 4 McCarthy, supra, §25:22.


29

PageID#537. Third, Redbubble and artists exercise joint ownership or control over

infringing products: Artists supply the design, and Redbubble selects the universe

of products on which those designs can appear, and then oversees the printing and

manufacturing.

Redbubble’s relationship with fulfillers provides an equally straightforward

basis for liability. As explained, Redbubble prominently advertises that its “global

network of fulfillers ... are companies that we partner with to produce our goods,”

and that Redbubble “work[s] really closely” with them “to design and develop the

product.” In addition, Redbubble holds itself out as having the authority to bind its

manufacturers to produce goods “on demand” when Redbubble processes an order.

And Redbubble’s public representation that it sends its “Quality Manager” to

“perform quality control” in person at “every single fulfiller” establishes that

Redbubble exercises joint control over the process of producing infringing products.

Any one of those activities suffices to trigger Redbubble’s liability for the

direct violations committed by its partners. Indeed, this is an even more obvious

case for such liability than Grubbs. In Grubbs, this Court found vicarious liability

for trademark infringement “self-evident” because the indisputably infringing

party—not the defendant—sent a single, one-paragraph e-mail to its clients

announcing that “we are partnering with [the defendant]” in order “to ensure that our

customer service level continues to meet your expectations.” 807 F.3d at 790. This


30

Court held that “[t]he intent to create an apparent partnership in the eyes of

[consumers] is self-evident from this language, and we therefore proceed to the

merits of the claim for” trademark infringement against the defendant. Id. at 793.

Liability follows a fortiori here, where Redbubble itself has repeatedly made

representations of partnership and control with respect to artists and third-party

fulfillers—indeed, used those representations to generate business.

* * *

In failing to recognize that Redbubble is “using” OSU’s marks, the district

court missed the forest for the trees, focusing myopically on select details by which

Redbubble carries out its activities, rather than the nature of the activities in which

it is engaged. In reality, Redbubble undeniably “uses” the artwork that its artists

license: Redbubble “use[s] or display[s] [it] in the sale or advertising of services,”

15 U.S.C. §1127, and more broadly, Redbubble “convert[s] [it] to [its] service,”

“employ[s]” it, “avail[s] [itself] of” it, and “carr[ies] out a purpose or action by

means of” it, Bailey, 516 U.S. at 145 (quoting Smith, 508 U.S. at 229). When that

artwork is an infringing mark, the Lanham Act renders Redbubble directly liable.

II. The Decision Below Will Have Serious, Adverse Consequences For Amici And Their Trademarks.

The Lanham Act typically protects one commercial enterprise from another.

But the Act allows non-profit corporations to register and protect their trademarks,

and vindicating such trademarks directly benefits the mission of the non-profit


31

organization. For amici (and OSU), that mission is to provide a first-rate education

to hundreds of thousands of students. That mission takes many forms, including

classroom teaching, cutting-edge research, alumni outreach, and extracurricular

activities. Trademarks and the revenues they generate help tie those disparate

activities together. School spirit can drive purchases that produce revenues that can

be plowed back into improving the classroom experience or funding scholarships to

create educational opportunities.

In the days when most sales of amici’s trademarked merchandise took place

in brick-and-mortar outlets near campus, enforcing amici’s trademarks was fairly

straightforward. There was little ambiguity about whether someone was selling

trademarked goods or otherwise using amici’s trademarks. And if a store or

impromptu game-day stand started selling counterfeit goods in Ann Arbor, Lincoln,

South Bend, or Knoxville, detection and enforcement were likewise straightforward.

The Internet has changed that, working “‘far-reaching systemic and structural

changes in the economy,’” particularly in the retail sector. S. Dakota v. Wayfair, Inc.,

138 S. Ct. 2080, 2097 (2018) (quoting Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124,

1135 (2015) (Kennedy, J., concurring)). Those changes have had a direct effect on

amici and their trademarked goods. Online sales now account for a significant

percentage of sales of licensed goods.


32

But while the Internet has expanded the market for amici’s licensed products,

it has also complicated efforts to enforce amici’s trademarks. Enforcement is no

longer as simple as policing retail outlets around campus. Infringing products can

come from around the globe. In this regard, it is worth emphasizing that nothing in

the decision below denied that infringing products are being sold on Redbubble’s

website. But the prospect of enforcing amici’s trademarks against Redbubble’s

numerous and far-flung “artists” is a recipe for disaster. Enforcing rights against

each of them would be an enormous practical burden and would do nothing to stop

a new infringer from seizing the economic opportunity created by the resulting void.

The only practical solution is to hold Redbubble accountable for its own infringing

activities and prohibit the continued exploitation of its website.

Finally, the toll inflicted by the decision below is not limited to lost revenue.

Trademark protection exists not just to safeguard the economic value of a trademark,

but also to ensure the quality associated with the mark. Amici undertake elaborate

efforts to ensure that their trademarked goods are not just of high quality but reflect

well on their schools and marks. Amici are also able to ensure that their trademarks

are not exploited in inappropriate ways. Amici’s trademark rights allow them, for

example, to ensure that trademarks are used to promote the University rather than

denigrate rivals. There are no comparable guarantees of quality or integrity when

an entity like Redbubble exploits amici’s trademarks for commercial advantage. The


33

decision below, which provides a roadmap for evading the protections of the Lanham

Act, cannot stand.

CONCLUSION

This Court should reverse.

Respectfully submitted,

DALE M. CENDALI KEVIN M. NEYLAN, JR. KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022 (212) 446-4800

s/Paul D. Clement PAUL D. CLEMENT Counsel of Record ERIN E. MURPHY KIRKLAND & ELLIS LLP 1301 Pennsylvania Avenue, NW Washington, DC 20004 (202) 389-5000 [email protected]

BRIAN T. QUINN Acting Vice President and General Counsel MICHIGAN STATE UNIVERSITY 426 Auditorium Road, Room 494 East Lansing, Michigan 48824

TIMOTHY G. LYNCH Vice President and General Counsel MAYA R. KOBERSY Associate General Counsel JACK BERNARD Associate General Counsel UNIVERSITY OF MICHIGAN 503 Thompson Street Ann Arbor, Michigan 48109-1340

DOUGLAS R. PETERSON General Counsel CARRIE RYAN GALLIA Associate General Counsel UNIVERSITY OF MINNESOTA Office of the General Counsel 200 Oak Street S.E., Suite 360 Minneapolis, Minnesota 55455

SCOTT RICE Campus Legal Counsel THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS 258 Henry Administration Building 506 South Wright Street Urbana, Illinois 61801


mailto:[email protected]

34

STEPHEN S. DUNHAM Vice President and General Counsel MICHAEL J. BRIGNATI Associate General Counsel THE PENNSYLVANIA STATE UNIVERSITY 227 West Beaver Avenue, Suite 507 State College, PA 16801

JOHN J. HOFFMAN Senior Vice President and General Counsel THE STATE UNIVERSITY OF NEW JERSEY RUTGERS 7 College Avenue Winants Hall, Room 402 New Brunswick, NJ 08901

JACQUELINE A. SIMMONS Vice President and General Counsel THE TRUSTEES OF INDIANA UNIVERSITY Bryan Hall 211 107 S. Indiana Avenue Bloomington, Indiana 47405

TRENTEN D. KLINGERMAN Deputy General Counsel PURDUE UNIVERSITY OFFICE OF LEGAL COUNSEL 610 Purdue Mall West Lafayette, Indiana 47907

CARROLL J. REASONER Vice President for Legal Affairs and General Counsel GAY D. PELZER Deputy General Counsel UNIVERSITY OF IOWA 120 Jessup Hall Iowa City, IA 52242

WILLIAM E. THRO General Counsel DAVID L KINSELLA Senior Associate General Counsel UNIVERSITY OF KENTUCKY Office of Legal Counsel 301 Main Building Lexington, Kentucky 40506

JAMES P. POTTORFF, JR. Vice President and General Counsel UNIVERSITY OF NEBRASKA 3835 Holdrege Street Lincoln, Nebraska 68583

MARIANNE CORR Vice President and General Counsel UNIVERSITY OF NOTRE DAME 203 Main Building Notre Dame, Indiana 46556

MATTHEW M. SCOGGINS, III FRANK H. LANCASTER THE UNIVERSITY OF TENNESSEE Office of the General Counsel 719 Andy Holt Tower Knoxville, TN 37996

Counsel for Amici Curiae September 5, 2019


CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,496 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(f) and 6th Cir. R. 32(b).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief

has been prepared in a proportionally spaced typeface using Microsoft Word 2016

with 14-point Times New Roman font.

Date: September 5, 2019

s/Paul D. Clement Paul D. Clement


CERTIFICATE OF SERVICE

I hereby certify that on September 5, 2019, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Sixth

Circuit by using the CM/ECF system. I certify that all participants in this case are

registered CM/ECF users and that service will be accomplished by the CM/ECF

system.

s/Paul D. Clement Paul D. Clement


Addendum


8/30/2019

https://www.redbubble.com/shop/clothing?ref=global-nav-top 1/1


8/30/2019

https://www.redbubble.com/shop/home-decor?ref=global-nav-top 1/1


8/30/2019

https://www.redbubble.com/people/sidneyz22/works/29364894-michigan-m?cat_context=all-departments&grid_pos=20&p=sticker&rbs= 1cc0c52c-26bb-4155-ae81-c6d9cbbb7cfd&ref=shop_grid&searchTerm=michigan%20m

1/1


8/30/2019

https://www.redbubble.com/people/hergie10/works/14618677-university-of-michigan?cat_context=all-departments&grid_pos=35&p=sticker&rbs=05acb3b0 -66c0-4175-a84c-0e46d7460ab9&ref=shop_grid&searchTerm=%22university%20of%20michigan%22

1/1


8/30/2019

https://www.redbubble.com/people/marycrousseau/works/33248308-cartoon-sparty?cat_context=all-departments&grid_pos=10&p=sticker&rbs=3ed7f707-9b 7e-46d7-9ca9-97e172051a75&ref=shop_grid&searchTerm=michigan%20state%20university%20spartan

1/1


9/5/2019

https://www.redbubble.com/people/kuatlaos/works/31225780-michigan-state?cat_context=all-departments&grid_pos=42&p= t-shirt&rbs=3e1e40f3-1c24-4a07-be6b-b92bae6bab5f&ref=shop_grid&style=mens&searchTerm=michigan%20state%20spartans

1/1


8/30/2019

https://www.redbubble.com/people/integralapparel/works/28194201-minnesota-gopher-oars-up?cat_context=all-departments&grid_pos=23&p=t-shirt&rbs= 300d8ae7-b169-4ee0-a284-08ccb6b33362&ref=shop_grid&style=mens&searchTerm=University%20of%20Minnesota

1/1


8/30/2019

https://www.redbubble.com/people/sydneykeiner/works/39135130-ski-u-mah?cat_context=all-departments&grid_pos=52&p=sticker&rbs=300d8ae7-b169- 4ee0-a284-08ccb6b33362&ref=shop_grid&searchTerm=University%20of%20Minnesota

1/1


8/30/2019

https://www.redbubble.com/people/bonafideicon/works/31615796-illinois-classic-college-sports-letters?p=long-t-shirt&rbs=42953ca1-d2b2-469e-890e-33a24a 7543ac&ref=available_products_swiper

1/1


8/31/2019

https://www.redbubble.com/people/bonafideicon/works/31615796-illinois-classic-college-sports-letters?p=long-t-shirt&rbs= 42953ca1-d2b2-469e-890e-33a24a#&gid=1&pid=3

1/1


8/30/2019

https://www.redbubble.com/people/arugodard/works/38951063-illinois?cat_context=all-departments&grid_pos=7&p=t-shirt&rbs=ec15abaf-3069-490f-aadb- e00a18056676&ref=shop_grid&style=mens&searchTerm=fighting%20illini

1/1


8/31/2019

https://www.redbubble.com/people/arugodard/works/38951063-illinois?cat_context=all-departments&grid_pos=7&p=t-shirt&rbs =ec15abaf-3069-490f-aadb-e00a18056676&ref=shop_grid&style=mens&searchTerm=fighting%20illini#&gid=1&pid=3

1/1


8/30/2019

https://www.redbubble.com/people/kerrazyyy/works/35060981-nittany-lion-dab?cat_context=all-departments&grid_pos=53&p=sticker&rbs=0274113a-fc64- 4b59-a17c-424880aa3d58&ref=shop_grid&searchTerm=penn%20state

1/1


8/30/2019

https://www.redbubble.com/people/mmerlino20/works/40372752-penn-state?cat_context=all-departments&grid_pos=231&p=sticker&rbs=0274113a-fc64- 4b59-a17c-424880aa3d58&ref=shop_grid&searchTerm=penn%20state

1/1


8/30/2019

https://www.redbubble.com/people/elhefe/works/38414509-go-scarlet-knights-the-rutgers-scarlet-knights?cat_context=all-stickers&grid_pos= 7&p=sticker&rbs=69cfe1ba-69bf-4db8-8b0d-b7b8ddd3573e&ref=shop_grid&searchTerm=rutgers%20scarlet%20knights

1/1


8/30/2019

https://www.redbubble.com/people/paigegandy5/works/37315897-rutgers-obama?cat_context=all-departments&grid_pos=52&p=sticker&rbs=1fa1e933-9f82- 419f-8bc0-f5dbc2e44f04&ref=shop_grid&searchTerm=Rutgers

1/1


8/30/2019

https://www.redbubble.com/people/joellekaplan/works/34964403-indiana-university-sticker?cat_context=all-departments&grid_pos=7&p=sticker&rbs= 6e79c6dc-8ee4-4f0d-8569-28c6a673448a&ref=shop_grid&searchTerm=indiana%20university

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8/30/2019

https://www.redbubble.com/people/joellekaplan/works/34964368-indiana-university-sticker?p=tote-bag&ref=similar_products 1/1


9/5/2019

https://www.redbubble.com/people/rachelannenagel/works/36058093-purdue-pup? p=t-shirt&style=mens&rbs=977eab59-9dad&ref=similar_products

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9/5/2019

https://www.redbubble.com/people/rachelannenagel/works/36058093-purdue-pup? p=t-shirt&style=mens&rbs=977eab59-9dad&ref=similar_products#&gid=1&pid=3

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9/5/2019

https://www.redbubble.com/people/betotolo/works/35380175-university-of-purdue?cat_context=all-departments&grid_pos=14& p=t-shirt&rbs=ef062a6f-1384-419e-bd5d-c914c513820d&ref=shop_grid&style=mens&searchTerm=purdue%20football

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8/30/2019

https://www.redbubble.com/people/blcsoccergirl23/works/33107696-uk-blue-fade?p=t-shirt&style=longsleeve&rbs= 9e52c86a-d2d6-4976-90c6-8b88c7a7a0d3&ref=available_products_swiper

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8/30/2019

https://www.redbubble.com/shop/p/34873212.NOJ2U.samsung-galaxy-cases?grid_pos=3&ref= shop_grid&rbs=9e52c86a-d2d6-4976-90c6-8b88c7a7a0d3&searchTerm=kentucky%20wildcats

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8/30/2019

https://www.redbubble.com/people/mat-barber/works/40776809-nebraska-cornhuskers-football-3?p=womens-fitted-v-neck&rbs=d539eb9d-d095-4440-82fd- 53b77b2a05a1&ref=available_products_swiper

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8/30/2019

https://www.redbubble.com/people/billykid83515/works/38197854-nebraska-cornhuskers?cat_context=all-departments&grid_pos=1&p=t-shirt&rbs=d539eb9d -d095-4440-82fd-53b77b2a05a1&ref=shop_grid&style=mens&searchTerm=cornhuskers

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8/30/2019

https://www.redbubble.com/people/js1225/works/30238931-fighting-irish-leprechaun?cat_context=all-departments&grid_pos=2&p=laptop-skin&rbs= 5b907eb7-cbfe-473c-9ef6-22025c91594f&ref=shop_grid&searchTerm=notre%20dame

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8/30/2019

https://www.redbubble.com/people/denisadila/works/23706808-notre-dame-logo?cat_context=all-departments&grid_pos=11&p= t-shirt&rbs=ee920956-85ca-4301-bf52-6c554fc6d5f3&ref=shop_grid&style=mens&searchTerm=notre%20dame

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8/30/2019

https://www.redbubble.com/people/caitlynmaries/works/32751215-tennessee-orange?cat_context=all-departments&grid_pos=87&p=mug&rbs= 4a926ead-fc33-43ae-967e-edb94909a6a5&ref=shop_grid&style=standard&searchTerm=university%20of%20tennessee

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8/30/2019

https://www.redbubble.com/people/davisluna15/works/27800408-tennessee-vols-badge-jauan-jennings?p= mens-graphic-t-shirt&rbs=9f7424cf-3dd0-4756-b4d6-ff225c52437e&ref=similar_products

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no. 19-3388 united states court of appeals for the …jdlitman/classes/tm/redbubble... · 2019. 9....

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