sales of these items exceed tens of millions of dollars. The universities advertise items with their school colors in almost every conceivable manner, and the record contains ample evidence that the universities’ school colors have been referenced numerous times in magazines and newspapers. The universities have even used the colors to refer to themselves, i.e., LSU sometimes refers to itself as the “Purple and Gold.” Defendants admit that they selected the color schemes, logos, and designs for their shirts in order to refer to the universities and call them to the mind of the consumer, although defendants deny that they intended to confuse the public into thinking the universities manufactured Smack’s shirts. See Thomas & Betts Corp. v. Panduit Corp., 65 F.3d 654, 663 (7th Cir.1995) (<HOLDING>). Applying the Fifth Circuit’s test for
holding that section 43a of the lanham act protects trade dress holding that inconsistent advertising of an alleged protected trademark for five years did not establish secondary meaning holding that plaintiff inadequately pleaded secondary meaning where it failed to allege facts relating to its advertising expenditures consumer surveys marketing coverage or prior attempts to plagiarize plaintiffs trade dress holding that mark had not acquired secondary meaning even with advertisements costing 4400000 over five years because it did not lead consumers to associate plaintiffs mark with its products holding that copying is only evidence of secondary meaning if the defendants intent in copying is to confuse consumers and pass off his product as the plaintiffs in that situation the defendants belief that plaintiffs trade dress has acquired secondary meaning  so that his copying will indeed facilitate his passing off  is some evidence that the trade dress actually has acquired secondary meaning