SeeUniv. of Pittsburgh v. Champion Prods. Inc. , 529 F. Supp. 464 (W.D. Pa. 1982) (Pitt I ); Univ. of Pittsburgh v. Champion Prods. Inc. , 686 F.2d 1040 (3d Cir. 1982), cert. denied , 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982) (Pitt II ); Univ. of Pittsburgh v. Champion Prods. Inc. , 566 F. Supp. 711 (W.D. Pa. 1983), order vacated (3d Cir. Feb. 2, 1984).See Doc. 39 at 15; Doc. 40 at 12–13.

In order to establish infringement in a promotional goods case, it has traditionally been the plaintiff's burden to show that prospective purchasers are in fact likely to be confused or misled into thinking that the defendant's product was produced, licensed, or otherwise sponsored by the plaintiff. See e.g., Supreme Assembly v. J.H. Ray Jewelry Co., 676 F.2d 1079, 1082 (5th Cir. 1982); International Order of Job's Daughters v. Lindeburg Co., 633 F.2d 912, 919 (9th Cir. 1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956 (1981); University of Pittsburgh v. Champion Products, Inc., 566 F. Supp. 711 (W.D.Pa. 1984); NFL Football Properties, Inc. v. Wichita Falls Sportswear, Inc., 532 F. Supp. 651 (W.D. Wash. 1982). The facts bearing on this type of confusion have been, to a great extent, already set forth in our "confusion of goods" analysis.

The parties appear to agree that the elements of common law trademark infringement under Pennsylvania and federal law are identical, a conclusion reached by a number of district courts. See University of Pittsburgh v. Champion Products, Inc., 566 F. Supp. 711, 719 (W.D.Pa. 1983); Artus Corp. v. Nordic Co., Inc., 512 F. Supp. 1184, 1187-88 (W.D.Pa. 1981): International Society for Krishna Consciousness, Inc. v. Stadium Authority, 479 F. Supp. 792, 798 (W.D.Pa. 1979). Our review of these cases and Pennsylvania decisions, see, e.g., Zimmerman v. Holiday Inns of America, Inc., 438 Pa. 528, 534-35, 266 A.2d 87, 90 (1970), cert. denied, 400 U.S. 992, 91 S.Ct. 456, 27 L.Ed.2d 440 (1971), leads us to conclude that except for the element of interstate commerce required to support a claim under the Lanham Act, the two causes of action are sufficiently similar to permit us to restrict our discussion to the federal claim alone.

Indeed, a reasonable purchaser could easily interpret the marks both ways simultaneously.Id. at 1335; cf. University of Pittsburgh v. Champion Prod., Inc., 566 F. Supp. 711, 720-21 (W.D.Pa. 1983) (finding that university could not prevent clothes' manufacturer from using its logo on clothes in an aesthetically functional way that did not imply the university's association with the goods' sale or manufacture). As another court has said: [M]arks that are exploited only for their functional value and not to confuse the public receive no protection under unfair competition laws. Functionality in this context means that consumers desire the mark for its intrinsic value and not as a designation of origin.

Moreover, in the instant case, the disclaimer was only affixed in small print at the bottom of the back of the defendant's T-shirts. 11. University of Pittsburgh v. Champion Products, Inc., 566 F. Supp. 711 (W.D.Pa. 1983), a case initially relied upon by the defendant, is distinguishable from the case at bar. In University of Pittsburgh, the plaintiff did not market similar goods.

A small but growing number of cases has recognized this change, and has found no difficulty in applying the source- identifying/functional distinction where trademarks or service marks serve purely as functional features. See International Order of Job's Daughters v. Lindeburg Co., 633 F.2d 912 (9th Cir. 1980) (insignia of young women's fraternal organization is functional element of jewelry), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956 (1981); University of Pittsburgh v. Champion Prods., Inc., 566 F. Supp. 711 (W.D.Pa. 1983) (name of university is functional element of shirts); Bi-Rite Enters., Inc. v. Button Master, 555 F. Supp. 1188 (S.D.N.Y. 1983) (names of recording artists are functional elements of buttons). These cases have presented no difficulty for the traditional categories of trademark law because, as in the New York Mets hypothetical, it has been clear that the ordinary purchaser has treated the marks as functional items, not as source- identifiers.