University of Cincinnati Obtains Secrecy Order in Bearcat Cafe Trademark Lawsuit: Public School Says Protecting 'Confidential' Info

Maybe the Bearcat's DNA sequence is under wraps 

CINCINNATI (TDB) -- What began last year as a legal dispute over use of the name 'Bearcat' at a bar and coffee house near the University of Cincinnati campus has now evolved to entail a protective order that shields public  records from public exposure.  U.C. lawyers working for Atty. Gen. Mike DeWine got the order earlier this week.  They did not specifically pinpoint any material whose dissemination would be harmful -- they said only there was "potentially confidential" data that could be exposed during litigation over who and what gets to be called a Bearcat.  Apparently, the old saw "What's in a name" includes some secret stuff beyond the realm of mascots, sports teams, alumni associations and campus watering holes.  No records were sealed, but the protective order is designed to stop lawyers from disseminating records they gather during pre-trial discovery.        

The Bearcat Cafe is at 239 West McMillan and has been using the name since 1959, long before the university obtained a trademark for its nickname.  Magistrate Judge Karen Litkovitz appears to have rubber stamped the request to keep records confidential without bothering to hold a hearing to ask questions on the record.  She has wide discretion as this U.S. Courts study of discovery protective orders shows.    Typically, protective orders are issued to safeguard trade secrets -- for example, the formula for Coca Cola -- and personal medical information from disclosure.  Protective orders can be used to hide embarrassing information.  They are not meant to be used as a means of sliding around Ohio's Public Records Law.
 U.C. is a state school and is covered by the Public Records Law.  An excerpt of the school public records policy is here:

The University of Cincinnati is a public institution and, as such, is subject to the provisions of the Ohio Public Records Act. In general, the Ohio Public Records Act requires that records that document the organization, functions, policies, decisions, operations or other activities of the university be made available to any member of the general public upon request. This policy is intended to ensure that all requests for public records are handled in an efficient and timely manner, without undue disruption to the operations of the university. All university personnel are therefore required to comply with this policy, and all persons seeking to inspect or obtain copies of university records are strongly urged to follow the procedures set forth in this policy for requesting records so that their requests might be handled efficiently and in a manner that complies with the law. This policy does not apply to the use of records for official university business or to persons who desire access to their own records.

You can read the entire policy (pdf) by clicking here. The university's out-of-town lawyers -- they are special counsel from Columbus -- submitted a three-paragraph memo to obtain the protective order. It is largely boilerplate:

"The parties have recently begun discovery in this case.  The parties have further agreed to the Attached Protective Order of Confidentiality in order to protect the confidential information of the parties, as well as other confidential information of third-parties that are not directly involved in the case.
"Whether to enter a protective order lies in the discretion of the Court.  Thomas v IBM, 48 F.3d 478,482 (10th Cir. 1995).  Where, as here, the case involves one or more private litigants, the entry of a protective order is an appropriate means to protect the party's legitimate privacy interests.  Weimar v. Honda of Am. Mfg. 2007 U.S. Dist. LEXIS 77490, *7 (S.D. Ohio Oct. 17, 2007).  Given the potentially confidential nature of material that will be exchanged in this case, a protective order is appropriate.
"Wherefore, Plaintiff respectfully requests that this Honoral Court grant this Motion and enter the attached Agreed Protective Order of Confidentiality as an Order of the Court in this case."

The Bearcat Cafe has been around since 1959, but was sued last year for infringing on U.C.'s trademark.  Its corporate parent, the Hamburg Tea Company, has countersued saying that the university is stepping on its trademark for food and beverages in the Clifton area.  The cafe contends the state university is trying to protect the Kingsgate Marriott, whose site U.C. leases to the national hotel chain,  The cafe claims U.C. receives revenue from the Marriott, which operates a "Bearcat Lounge" in the hotel:

"UC's use and licensure of 'Bearcat Lounge' constitutes an unauthorized use of Hamburg's trade name and trademark rights.  UC's unauthorized use of Hamburg's trademark is commercial in nature adn is intended to, and will, directly compete with the lawful activities of Hamburg to the detriment of Hamburg.     Prior to his action, Hamburg sent cease and desist correspondence to the Kingsgate Marriott, demanding that it cease and desist with the use of 'Bearcat Lounge" in association with its restaurant and bar."