From Business Opportunity to Legal Peril
"Retro high school apparel" — clothing such as hoodies or T-shirts printed with a high school's name and crest — is a popular nostalgia business. Its appeal lies in letting customers relive the fond memories of their high school years.
In Lakehead District School Board v. Mauro et al., 2024 ONSC 5174, the defendant, Mauro, spotted exactly this kind of business opportunity. She began designing clothing using the names, mascots, and colour schemes of several now-closed high schools in Thunder Bay, hoping to tap into the "nostalgia market." By Mauro's own account, the business was doing reasonably well.
Unfortunately, the good times didn't last. Mauro's "nostalgic products" eventually caught the attention of the plaintiff, the Lakehead District School Board. In late 2022, the Board discovered that Mauro was selling hoodies and T-shirts at a local shopping mall bearing the names of defunct high schools such as Fort William, Port Arthur, and Selkirk. The designs reproduced these schools' historical names, colour schemes, and mascots. The Board sent a letter demanding that Mauro explain the origin of her designs and products, and requiring her to immediately stop selling these "nostalgic products."
According to the defendant, she had looked up the names and crests of the closed high schools on Facebook, and had searched online for and downloaded stock photos resembling the school crests, in order to ensure she was not infringing anyone's copyright. Only one crest design was taken from a yearbook of a closed school. Mauro also argued that the names of these closed high schools did not necessarily belong to the Lakehead Board, since other school districts also had schools with the same names. She further claimed that she had conducted a thorough copyright and trademark search to confirm the school crests were not protected by copyright and were in the public domain.
The central issue in this case, then, was: do the names and crests of schools that no longer exist still enjoy legal protection? And does a school board have the right to prevent others from modifying these "nostalgic elements" and commercializing the resulting designs?
While the defendant admitted to "referencing" these schools for inspiration, she offered as her defence that "the schools no longer exist," that "the designs were of a generic nature," and that "other people were selling similar products on Facebook too." She also told the Board that she was raising funds for the schools' athletic teams through these products — but the Board's department told her it had no interest in that arrangement, and simply demanded that she take the allegedly infringing products off the market, or else face her in court.
With Christmas approaching, and not wanting to miss out on this peak retail season, the defendant asked the Board to allow her to continue selling her goods until December 31. The Board, believing the defendant had ignored its warnings, brought this lawsuit instead.
The Board asked the court to grant:
A declaration of rights: confirming that the Board holds the copyright and moral rights in the names and crests of the closed high schools;
Damages: an order requiring the defendant to pay over her sales proceeds of $23,891.52;
Punitive damages: $20,000, to punish her knowing and deliberate conduct; and
An injunction: permanently prohibiting the defendant from using the crests of any school within the Board's jurisdiction (whether closed or still operating) for commercial purposes.
The defendant argued that the Board had never registered copyright in these works, and therefore had no right to seek damages. The court, however, reaffirmed the core principles of Canada's Copyright Act:
Automatic acquisition: copyright arises automatically the moment a work is created in fixed form, and does not depend on registration. Registration merely serves an evidentiary function.
Statutory authority: the judge noted that, under the Education Act, a school board holds statutory control and a proprietary interest over all school assets within its jurisdiction, including school crests.
Applying a "holistic approach," the judge held that although a school name or colour scheme in isolation might not be exclusive to any one party, when a school's abbreviated name, distinctive colour scheme, and unique mascot are combined together, the resulting originality is sufficient to constitute a "substantial part" deserving legal protection.
In a mid-sized city like Thunder Bay, these visual elements carry strong recognition value — members of the public can immediately identify their connection to schools under the Board's jurisdiction at a glance.
Accordingly, the judge found that the defendant had infringed the Board's copyright in the high schools' materials, and ordered the defendant to pay the Board the related proceeds of $23,891.52. The judge, however, declined to award punitive damages.
The court also issued a permanent injunction against the defendant, barring her from engaging in similar infringing conduct in the future, and requiring her to hand over all remaining infringing merchandise.
There was a postscript to this case: the defendant appealed, arguing that the trial judge had failed to deduct her costs from her revenue. However, her appeal was dismissed, because she had failed to provide any evidence of her costs — a failing that lay with her, not with the judge.
Creativity and business opportunity are certainly important, but legal boundaries cannot be ignored. Respecting intellectual property rights isn't just about avoiding risk — it's also a mark of professionalism in a brand. Hopefully, this case can help others steer clear of potential legal pitfalls when developing new products.