NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff Alumni Association of New Jersey Institute of Technology (the Association or plaintiff) appeals from a May 29, 2014 judgment in favor of defendant New Jersey Institute of Technology (NJIT, the University, or defendant).

The judgment was entered after a thirty-seven day bench trial, for reasons stated by Judge Harriet Farber Klein in a forty-six page written opinion dated February 28, 2014. We review de novo the judge's legal interpretations including construction of contracts. Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014). We will not disturb the judge's findings of fact so long as they are supported by substantial credible evidence. See Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We owe special deference to her credibility determinations. Ibid.

After reviewing the voluminous record, with appropriate deference to the trial judge's opportunity to evaluate witness credibility, we conclude that Judge Klein's factual findings are supported by substantial credible evidence. The facts, as she found them to be, provide ample support for her legal conclusions. We affirm substantially for the reasons set forth in her comprehensive opinion. We add these comments.

This is a dispute between the Association and NJIT over the University's decisions to: disaffiliate itself from the Association, create a new NJIT Alumni Association, preclude plaintiff from using the "NJIT" name, and exclude plaintiff from using University facilities. After listening to numerous witnesses for both sides, as well as considering the pertinent documents, Judge Klein credited defendant's version of the facts on critical points. She found that the University had trademark rights in the NJIT name. She further found that the Association's right to use the NJIT name was based on an affiliation and licensing agreement between the parties. She also believed NJIT's witnesses, who testified that the Association was no longer living up to its obligations under the parties' agreement.

Importantly, Judge Farber credited NJIT's evidence that: the leaders of the Association's Board of Trustees (Board) "were an entrenched and insular group" that "had little or no connection to the alumni at large" and "were resistant to change"; the Association failed to organize alumni events; and the Association was actively engendering alumni hostility toward NJIT rather than carrying out its mission of "friendraising" among the alumni. Instead of "promot[ing] the interests of NJIT[,]" the Association engaged in "disloyalty and antagonism[,]" including contributing funds for possible litigation against the University.

The judge found that "the activities of the Board completely undermined its relationship with the University and destroyed any benefits that accrued to the University from their affiliation." She concluded that NJIT was "entitled to terminate the relationship and [the Association's] corresponding privileges to use the [University's] names, symbols, [and] marks," because the Association breached its obligations to the University under the affiliation agreement. She concluded that the termination did not violate the Association's contract rights or its First Amendment rights. Crediting the testimony of the university's witnesses, the judge found that the decision to disaffiliate was made because the Association was not fulfilling the role for which the University had granted it a license to use the NJIT name.

The judge further found that prior to the disaffiliation, NJIT did not breach its obligation to provide adequate office space for the Association in the Eberhardt Alumni Center, a newly-refurbished university building. Rather, she discounted what she found to be exaggerated claims by Association witnesses concerning the facilities that had previously been available to them in Wilson Hall, the old alumni center, and what she found to be incredible testimony about the allegedly inadequate facilities in Eberhardt.1

The judge also rejected a late-raised claim by plaintiff that NJIT had wrongfully appropriated two awards (the Van Houten Award and the Alumni Achievement Award) in which the Association claimed trade name rights. She found that these were not Association awards but in fact were University awards, bestowed on recipients through the Association. The judge credited testimony that the University had always controlled the selection of the winners by, among other things, providing the Association with the information essential to the selection decision, and the awards were always presented at an event at which other University awards were presented. She found that "the award medals themselves do not contain the words `Alumni Association'" but rather "[e]ach bears the name of the New Jersey Institute of Technology."

Judge Klein also found that "[t]here is nothing that identifies Plaintiff's Board with the awards. They have been given in the name of the University by the Alumni Association affiliated with it.... The awards were, and still are, bestowed by the University's recognized alumni organization." When plaintiff lost its affiliation with the University, it lost its corresponding right to present the awards. She also noted that, as a practical matter, plaintiff failed to explain "how the Board would even approach selecting a recipient, without a presence on campus, access to mailing lists, or University resources."

Finally, the judge noted that plaintiff was not precluded from renaming its organization in a way that would identify it as an alumni group without creating confusion. In an attempt to head off additional litigation, she gave plaintiff the option of changing its name to "Independent Alumni of NJIT." Thus, plaintiff still has a vehicle by which to engage in alumni activities, without using a name that reflects an affiliation as NJIT's sanctioned alumni association.

On this appeal, the Association raises the following points of argument:

Those points rely heavily on plaintiff's version of the facts, which the judge did not accept. They also recycle arguments presented to, and properly rejected by, the trial court. Except as briefly addressed below, plaintiff's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Downplaying the central issue of its breach of the affiliation agreement, the Association argues that NJIT withdrew its right to use the "NJIT" trade name for the impermissible purpose of suppressing the Association's First Amendment rights. That argument is not supported by the facts, as the trial court found them to be.

The record supports Judge Klein's conclusion that NJIT permitted the Association to use its distinctive NJIT name and to represent itself as the University's official alumni association, on the condition that it fulfill the functions of an officially-sanctioned alumni association. Those functions included creating goodwill for the University among its alumni and encouraging them to support NJIT ("friendraising"), and arranging alumni events. When the Association's Board became "insular" and disconnected from the alumni, ceased planning alumni events, allowed most of the Association's fifty-nine local chapters to become inactive, and began attacking and undermining the University, NJIT was entitled to withdraw permission to use its name. As the judge found, plaintiff's breach of the affiliation agreement also justified the termination of the University's obligation to continue to provide plaintiff with office space in Eberhardt Hall.

We agree with Judge Klein that the Association's Board, acting in its official capacity, did not have a First Amendment right to engage in speech or conduct that undermined the purpose of the affiliation agreement. See Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 1960, 164 L. Ed. 2d 689, 701 (2006). "[W]hen the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee." Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 2519, 132 L. Ed. 2d 700, 718 (1995). By analogy, if the University hired a public relations firm, the latter would not have a First Amendment right to run a newspaper ad proclaiming that the University was a bad educational institution.2

Contrary to plaintiff's argument, we find no error in Judge Klein's finding that plaintiff's continued use of the name "Alumni Association of New Jersey Institute of Technology" would create confusion, by giving the impression that plaintiff was still NJIT's officially sanctioned alumni association. She appropriately considered the ten factors set forth in Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir. 1983), and determined that use of the name would be confusing to alumni or others who might be "contacted or solicited by the Plaintiff's Board[.]" See Arrowpoint Capital Corp. v. Arrowpoint Asset Mgmt., L.L.C., 793 F.3d 313, 319-20 (3d Cir. 2015) (noting that the ten factors apply to services as well as goods or commercial activities, and emphasizing likelihood of confusion as a critical factor).

Like Judge Klein, we also reject plaintiff's fair use claim. In this context, use of the NJIT name in conjunction with "Alumni Association" is not a fair use of words that describe plaintiff's identity as a group of NJIT alumni. Rather, it implies "sponsorship or endorsement by the mark holder," which in this case is NJIT. Playboy Enters. v. Welles, 279 F.3d 796, 801 (9th Cir. 2002); see also Villanova Univ. v. Villanova Alumni Educ. Found., Inc., 123 F. Supp. 2d 293, 304-05 (E.D. Pa. 2000). The fact that plaintiff was, for so many years, the University's official alumni association, would only add to the likelihood of confusion if it continues to use the name. Id. at 309-10. "The unauthorized use of a mark by a former licensee presents a particular danger of confusion to the public. It has been described as `a fraud on the public, since they are led to think that the ex-licensee is still connected with the licensor.'" Id. at 309 (citation omitted).

Universities, charities and other non-profit organizations have a protectable interest in their ability to attract monetary contributions, and other forms of support, through the use of their protected trade names. See U.S. Jaycees v. Phila. Jaycees, 639 F.2d 134, 136-37 (3d Cir. 1981); Birthright v. Birthright, Inc., 827 F.Supp. 1114, 1135-36 (D.N.J. 1993); Villanova, supra, 123 F. Supp. 2d at 305-06. Contrary to plaintiff's argument, it is not necessary to prove that an infringer is using the name for a profit-making commercial purpose. A non-profit entity that makes unauthorized use of the name for charitable purposes may be enjoined from trademark infringement. See Jaycees, supra, 639 F.2d at 141; Birthright, supra, 827 F. Supp. at 1135-36; Villanova, supra, 123 F. Supp. 2d at 305-06, 311-12. Fundraising and alumni services are considered "commercial" services for purposes of trademark protection. See Valley Forge Military Acad. Found. v. Valley Forge Old Guard, Inc., 24 F. Supp. 3d 451, 455-56 (E.D. Pa. 2014).3

Affirmed.