Would this be trademark infringement?
http://www.gobison.com/ViewArticle.dbml?DB_OEM_ID=2400&ATCLID=204978218
http://www.marshall.edu/licensing/
Trademark law and trademark infringement analysis are complex areas of the law - it would probably require a couple of hours and long responses to really drill down on this particular factual scenario, which I doubt anyone really cares enough about to read. I'll give an quick overview and my opinion for those that might be interested.
My recollection is that Marshall Univ. has a federally registered trademark for "The Herd" or "Herd" (can't recall which). Unless North Dakota St. can show trademark use of "The Herd" prior to MU's registration, then NDSU would likely lose in defending against a trademark infringement suit because the marks are identical and in the same type of goods/services. IF NDSU could show prior use to MU's registration, then it could have rights to use the mark that is limited to the geographic reach it possessed at the time of MU's registration (most likely - the upper midwest).
Perhaps the broader question is whether it would get to the point of a lawsuit - MU could reach out and offer NDSU a license to use "The Herd" that is limited in scope and would include disclaimers regarding affiliation with Marshall Univ, the offer to license could be included in any initial "nasty gram" sent to NDSU at the outset to encourage some type of non-suit settlement. Trademarks are unusual in that fear of trademark erosion is a key motivation in an owner exercising its rights (for example - at one time "Aspirin" and "Escalator" were registered trademarks but were abused by the public to the point that the marks began to represent the product it was associated). So, it would behoove the university to at least inquire with NDSU about its use, its intentions, and whether there is some non-litigation means for resolving the issues that doesn't damage MU's trademark rights.
Patents aren't worth the paper they are printed on for the most part. They have to be very specific and anyone that copies something has to do it exactly to get their hands slapped. The most suttle cosmetic change will clear them.
Yes and No. Part of the analysis depends on whether a utility patent or a design patent is at issue. Design patents usually are of limited scope because of the aesthetic nature of the protection - designing around a design patent (generally) is an issue of creating a different aesthetic. Rather than aesthetics, utility patents protect arrangement, function, or method using words - which can be broadly or narrowly defined depending on the prior art. The breadth of protection is ultimately determined at trial (either by the judge or jury), so no one really knows the breadth of protection until it is litigated. What tends to happen is that the expense of pursuing that answer (either as a plaintiff or defendant) outweighs the expected value of any judgment (or consequence of the judgment) so that a company will go back to the drawing board and design-around the lay-understanding of the patent(s) in question.
Patents have value for a variety of reasons, although not all necessarily apply to each patent or patent holder. Some patents are purely marketing tools (e.g., "Widget X is patent pending" or "Widget X - US Pat. No. xxxxxxxx); some are defensive as disclosing a bunch of alternatives that a company does not actually claim or wish to pursue just so that the information is prior art against some late-coming patent filer; some are of limited scope and some are broad (ultimately determined by suit).
Depending on what industry you are specifically in, patents can be a net loss because the field is so crowded that only small incremental changes are patentable and such changes are not broad enough to forestall later incremental changes of competitors - esp. industries where "trends" dictate sales are esp. vulnerable. On the other end of the spectrum is the recent Apple and Samsung patent infringement suit - Samsung was rung up for a $1 billion judgment for infringing Apple patents.
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