Over the summer I have been working on a law review article concerning the history of the .EDU extension. The project also involved collecting and analyzing data concerning college and university use of two specialized regulations – the Uniform Domain-Name Dispute-Resolution Policy (UDRP) and the Anticybersquatting Consumer Protection Act (ACPA) – to seek ownership and control of domain names that they believe infringe their trademark rights.
Some of the findings raise questions about institutions’ orientations toward brand protection and expansion, free speech and institutional reputation, and commercial involvement. Data show that colleges and universities use the UDRP (which, as a form of arbitration, typically costs anywhere between $3,000 and $5,000 to pursue to completion) much more frequently than they do ACPA litigation (which, as a form of federal court litigation, is much costlier to pursue).
One-hundred different institutions have brought at least one UDRP action, with Baylor University filing the most actions (62 of them) since the year 2000. The graph displayed below shows the number of UDRP filings by colleges and universities by year. Colleges and universities filed 233 UDRP actions, involving 373 different domain names, through the year 2013. Most of these involved disputes over .COM domain names (75.9%), although disputes involving more exotic extensions – such as .INFO, .ME, .BIZ, .XXX, and .TV – also occurred.
Data reveal Baylor University to be an outlier in many respects. Its 62 UDRP actions concerned 130 domain names – many, in my opinion, of questionable importance to the institution. For example, Baylor filed UDRP actions to obtain transfer of the following: <baylorsucks.com>; <ihatebaylor.com>; <baylorbkstr.com>; and <justbuit.com>.
By far my favorite Baylor domain name dispute, though, occurred in November 2013 and involved the domain names <rg3baylor.com> and <rg3bu.com>, which a third-party had registered and begun using for his fantasy football league. For those unfamiliar with the moniker, ‘RG3’ is the nickname of Washington Redskins quarterback Robert Griffin, III, who won the Heisman Trophy while playing for Baylor, from which he obtained his undergraduate degree in 2010. The university owns no trademark in RG3’s legal name or nickname, yet felt aggrieved by the two domain name registrations. Owning federal registrations for both the words BAYLOR and BU, the university asserted that the disputed domain names were confusingly similar to its trademarks; the arbitration panelist agreed, finding that the addition of the descriptive term ‘rg3’ – “likely meant as an allusion to Robert Griffin III, who achieved fame while playing for Complainant’s football team” – did not vitiate Baylor’s rights in the domains (p. 5). The full text of the decision can be found here.
One wonders whether RG3 – whose nickname as a professional athlete clearly has commercial value to him – prompted this enforcement activity, or even is aware of it. Recent visits to the two domain names, whose transfer Baylor successfully achieved in December 2013, show that neither resolves to a Web page. To what use these domain names will be put in the future, if any, will be interesting to watch.
The question of what institutions that win transfer of disputed domain names under the UDRP choose to do with those domains is one that interested me. Surprisingly, my research revealed that nearly one-third (31.8%) of the domain names transferred to a college or university because of a UDRP decision were (a) available to register, or (b) no longer registered to the institution that had won transfer of the domain. This finding challenges the natural assumption that higher education’s battles for cyberspace tend to concern “important” domain names that have some lasting value to the institution. In many cases the data show that an institution no longer owns a domain name that it once deemed important enough to spend thousands of dollars to fight over, not even five years after receiving it.
To what uses do institutions put the domain names that they have won and still own? I visited each of these 227 domain names to find out. I was surprised to find that over half of them (56.8%) were not being used in any effective way. That is to say, instead of displaying content, or redirecting visitors to another Web site affiliated with the institution, the majority of domain names that colleges and universities have fought to win display no meaningful information at all – either they do not resolve to a Web page (e.g., try visiting <tufts.mobi>), or they display a parked page upon visit (e.g., visit <universityofidaho.com>). This finding further challenges any assumption that institutions only pursue transfer of domain names that they intend to use. Admittedly, good reason exists why some of the domains are not used (e.g., Baylor understandably does not use <baylorgirls.xxx>), but why doesn’t Drexel use <drexel.org.>, if for no other purpose than to redirect visitors to <drexel.edu>?
The .EDU extension sets higher education apart from other industries, which never enjoyed their own unique domain name space until the recent expansion of top-level extensions by ICANN. Yet as my research shows, owning space in the .EDU domain name is not enough for many institutions, for a variety of reasons. In expanding their online domain beyond the .EDU, colleges and universities in a real sense are defining what they value as institutions, and the extent to which intellectual property protection figures into institutional mission.
Inescapable for higher education seems the fact that online space is important space, increasingly so as entire degree programs move to, or even are born as, “online only.” These spaces go to the heart of how we conceptualize higher education in the public sphere, as some combination of a public-facing but privately-oriented entity, simultaneously influenced by concerns for commerce, brand, and academic missions. At this intersection of priorities and values, made all the more pronounced and visibly contested in cyberspace, we find an industry pulled in different directions, whose behaviors occasionally seem schizophrenic, as the dual motives of self-preservation and self-aggrandizement intermix.
Interested readers can expect the full draft of my article, entitled “Defining Domain: Higher Education’s Battles for Cyberspace,” to be posted to my SSRN page by early fall.