## Facts

- The University of Nebraska–Lincoln athletic department planned an “authentic shop” selling team-used apparel and equipment and conducted a multi-month test marketing effort beginning in 1996.
- During test marketing, the University used a logo containing the phrase “Husker Authentics,” including in a co-branded catalog mailed to alumni and athletic supporters.
- In 1996, the University applied to register “Husker Authentics” as a Nebraska trade name but failed to complete required publication steps; the application was cancelled.
- In 1997, Brent White, a private retailer of University merchandise, applied to register “Husker Authentics” despite not having used the name in his business; he registered the name after completing filing and publication requirements.
- After learning its earlier application had been cancelled, the University applied to register “Husker Authentic,” but the Secretary of State denied the application as confusingly similar to White’s registration.
- The University opened a store in 1997 under the name “Huskers Authentic.”
- White sued for an injunction and damages for wrongful use of his registered trade name; the University counterclaimed for breach of contract and common-law trade name infringement.

## Issues

1. Whether a party who registered a Nebraska trade name without prior actual use could enforce the registration to obtain damages and an injunction against a similar name used by another party.
2. Whether the University established entitlement to relief on its counterclaims for breach of contract and common-law trade name infringement.
3. Whether the district court’s dismissals should be affirmed, and on what rationale.

## Decision

- The Nebraska Supreme Court affirmed the district court’s judgment.
- White was not entitled to damages or injunctive relief because he had not actually used “Husker Authentics” in business prior to registration and therefore lacked enforceable trade-name rights.
- The University was not entitled to relief on its counterclaims; dismissal of the breach-of-contract and common-law trade-name theories was affirmed.
- The affirmance rested on reasoning different from the district court’s stated rationale, focusing on the relationship between registration and substantive rights grounded in use.

## Legal Principles

- Nebraska trade-name rights are use-based; registration does not create enforceable exclusivity absent actual prior use in commerce.
- Common-law protection for a trade name depends on use that identifies source or sponsorship and generates goodwill, not on a strategic registration unconnected to commercial use.
- Earlier marketing activity and brand development by an opposing party can defeat a registrant’s claim of superior rights where the registrant lacks prior use.
- A counterclaim for breach of contract or common-law infringement requires proof of its elements; a licensor’s general interest in controlling branding does not, by itself, establish entitlement to relief.

## Conclusion

Because White registered “Husker Authentics” without prior commercial use, he could not use the registration to stop the University’s “Huskers Authentic” store or recover damages, and the University likewise failed to prove its counterclaims; the dismissals of all affirmative claims were affirmed.


White v. Bd. of Regents of the Univ. of Neb. at Lincoln, 260 Neb. 26, 614 N.W.2d 330 (Neb. 2000)