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Tuesday
Apr142015

U.S. Department of State's recommendation on Cuba looks to have effect on FL Travel Act

I have posted several times about the contentious "Florida Travel Act," which bans any faculty at public institutions in Florida from using state funds (and, as construed by the 11th Circuit, even private and federal funds) to conduct research in countries designated by the Department of State as sponsors of terrorism.

Today the U.S Department of State recommended that Cuba be removed from that list so it appears faculty in Florida may now again conduct research there. (Unfortunately, the Act will still apply to Syria, Sudan, and Iran.)

Wednesday
Apr082015

Do not let the heckler's veto veto campus free speech

Today the Chronicle of Higher Education reported an incident at the University of Michigan involving the cancellation--and then cancellation of the cancellation--of a viewing of Clint Eastwood's 2014 film "American Sniper."

Initially, an online petition circulated expressing discontent with the decision to show the film because of the negative way it portrays people from the Middle East, which prompted the campus activities board to cancel the event. However, the university later decided to go forward with its original plan, tweeting that it would hold the viewing in an "appropriate space for dialogue & reflection."

Campus communities remain the "marketplace for ideas" and as educators and administrators we have the duty to host controversial, and sometimes uncomfortable, dialogue in a safe and civil setting--rather than leaving the issues unaddressed or, worse, students' views unchallenged. The moral, cognitive, and psychosocial development of students is the domain of the out-of-class experience, and in my opinion institutions of higher education have a moral mandate to expose student-citizens to a multitude of perspectives.

Recently, Professor Eugene Volokh reminded us that the expulsion of the students involved in the racist chant at the University of Oklahoma was unconstitutional. What I think the university should have done instead was create open dialogue on campus among students of different backgrounds. The men of SAE should have been sat down with students of color to discuss how their actions affected the campus community--how the experience of minorities at OU is affected by both overt and covert racism. We need to radically change how we approach many issues on campus. Students don't need more education: education that hazing is wrong, sexual assault is wrong, racist chants are wrong.  Campuses need to chip away at the social norms that accept and encourage racism, dating violence, hazing, and binge drinking. The fraternity men at Oklahoma most likely would have not done what they did had it not been in a group. Similarly, sexual violence on campus is disproportionately committed by members of groups (i.e. Greek-letter organizations and athletic teams) in which such behavior inexplainably has been normalized. We need to target such populations and challenge not just their actions but their ways of thinking.

Whether it be racist and sexist speech, a controversial film, or a provocative speaker, by suppressing First Amendment rights in order to avoid what is uncomfortable we harm our campuses more by not affording students the opportunity to examine how they feel and think about the world around them. Case in point, dozens of campuses have signed on to host screenings of the sexual assault documentary "The Hunting Ground." That film certainly does no favor to institutions, as it recounts a very negative portrayal of how reports of sexual violence are mishandled by many campuses. But as the White House has said, "It's on us" to proactively mediate dialogue on this issue. It's not always easy or comfortable, but higher education must continue to be the leaders in these vitally critical debates. Bravo to those willing to do what is right by getting uncomfortable.

Monday
Apr062015

Our Own Joy Blanchard Quoted In USA Today Article

Contributing editor Joy Blanchard was quoted in an article appearing in USA Today that addresses issues related to fraternity misconduct. The article is available here.

Wednesday
Mar252015

What's The Matter In Kansas? Bill Would Ban Public College and University Employees From Using Official Titles In Opinion Pieces

A bill pending in the Kansas Legislature would prohibit public college and university employees from providing their official titles in newspaper opinion pieces. The Chronicle of Higher Education has published a commentary that I wrote critical of this proposed legislation (available here).

Thursday
Mar052015

Trademark Rights Accretion in Higher Education: Penn State & Duke Edition

I have written here, in the Chronicle, and elsewhere about college and university efforts to trademark aspects of their identity.  The phenomenon I call “trademark rights accretion” speaks to attempts by institutions to obtain exclusivity over market references they deem as theirs.  This post concerns two actions recently initiated at the United States Patent and Trademark Office (USPTO), where two famous universities have turned to adversarial proceedings to (1) in the case of Penn State, strip a non-competitor of a federal trademark registration, and (2) in the case of Duke University, prevent a non-competitor from registering a trademark that the institution views as problematic.  While both of these activities comport with the legal rights afforded them as trademark owners, I think each is shortsighted as a matter of higher education policy, for the reasons explained below.

The Pennsylvania State University owns federal trademark registration number 4,561,709 for the mark PENN STATE WHITE OUT as used in relation to “promoting public awareness of the need for fan participation and involvement in collegiate athletic competitions, excluding hockey competitions, conducted within the Commonwealth of Pennsylvania.”  It claims to have used the mark since 2004.  Penn State has enjoyed a federal registration for the mark since 2014.  Penn State had to fend off an opposition challenge brought by the Phoenix Coyotes hockey team, which uses WHITE OUT with respect to hockey, in order to enable the mark to register (thus the limitations concerning collegiate athletic competitions, excluding hockey, and only those contests conducted within Pennsylvania).

Now Penn State has picked its own fight.  On February 9, 2015, Penn State petitioned the USPTO’s Trademark Trial and Appeal Board, seeking cancellation of a trademark registration owned by a Norwegian company, Norrøna Sport AS, for the mark WHITEOUT as used in relation to a variety of clothing items.  Penn State initiated this action because a trademark examiner cited Norrøna’s existing registration as reason to deny a second application filed by Penn State to register PENN STATE WHITE OUT, this one claiming use in relation to “shirts.”  Penn State claims that Norrøna is no longer using the WHITEOUT mark in the United States, if it ever was (non-use is grounds for cancelling a trademark registration).

Regardless of its legal basis, Penn State’s effort here is misguided as a matter of policy.  PENN STATE WHITE OUT is hardly an integral feature of the university’s existence or functioning (unlike, for example, its name, seal, or athletic team name).  The university likely had hoped to register simply the words WHITE OUT, but knew that such an application would be refused due to Norrøna’s registration, so the university added the words PENN STATE to the mark in order to hopefully gain registration.  When the effort did not work, it decided to seek cancellation of Norrøna’s registration.

I would argue that the university’s real interest seems to lie in capitalizing on the color white as used in relation to collegiate athletic contests.  To state the obvious, there are quite a few collegiate teams across the country that use white as one of their official colors, and whose fans might wish to coordinate the wearing of such color to athletic contests, which they might also wish to descriptively term a “white out.”  Will Penn State seek to stop any attempts by other institutions to “white out” a stadium by asking their fans to wear white, the school color?  To ask the question is to understand how Penn State’s cancellation effort, while a technical concern about trademark protection, actually implicates a larger issue involving freedom of expression that ought to concern more than just those in Happy Valley.  If Penn State is willing to take this degree of action against a commercial entity with which it does not compete, what will it do to competitors within higher education if it obtains this registration?  Boise State’s activity with its trademark for a blue-colored playing field serves as a cautionary example.

Also on February 9, 2015, Duke University opposed an application filed by Benson Williams to register the mark DRANK UNIVERSITY as used in relation to athletic apparel (Opposition No. 91220555).  An opposition is a legal proceeding in which a trademark holder has the chance to prove that it would be harmed by the registration of a new trademark that the USPTO has cleared for registration.  Only after a USPTO attorney examines an application, and deems it fit for registration, do third-party mark holders have a chance to oppose an application, as Duke has done here. 

The university claims that registration of DRANK UNIVERSITY will create a likelihood of confusion and dilute the distinctive and famous nature of the DUKE trademarks owned by Duke University.  Here is the parade of horribles that Duke envisions should DRANK UNIVERSITY be permitted to register:

“Applicant’s proposed mark could presumptively be depicted on and in connection with jerseys in [Duke’s] school colors, in medieval or gothic font (both of which are strongly associated with Duke), in connection with collegiate teams and athletes, and with a devil visually similar to or parts thereof reminiscent of [Duke’s] mascot, and such goods could presumptively further be marketed in associated with images depicting, and themes associated with, colleges, collegiate programs, and, more specifically, [Duke] and [Duke’s] athletic team along with other indicia evocative of [Duke].”  Opp. No. 91220555, Notice of Opposition, ¶ 14, p. 5

It seems the real harm Duke is concerned with is simply a third party calling to mind the university in a manner the university finds objectionable—i.e., “drank” could relate to drinking, and any thoughts connecting drinking with Duke are verboten.  Here it is important to note the fact that the owner of DRANK UNIVERSITY might seek to use collegiate indicia merely to evoke a thought in a consumer’s mind about Duke University does not amount to consumer confusion.  Consumers are capable of seeing a mark, thinking about a particular university because of the mark, and yet not being confused into thinking that that university sponsors, condones, approves, licenses, or is otherwise affiliated with the mark.

In its opposition, Duke goes on to describe in additional detail, none of which is convincing, the harm it foresees should the DRANK UNIVERSITY mark register and come into contact with Blue Devil fans everywhere.  To wit:

“The application contains no distinguishing field of use or market limitations, or restrictions on channels of trade. The mark thus presumptively could be used to market sports jerseys, athletic wear or bags designed to facilitate tailgating to the hundreds of thousands of Duke fans around the country who support [Duke] and its athletic teams. The mark sought to be registered, used in connection with goods closely related to those sold under [Duke’s] DUKE Marks, presumptively would be marketed with images thematically evocative of [Duke] and would presumptively be targeted at, and marketed through channels of commerce directed to, [Duke’s] athletes and fans as well as [Duke’s] alumni, employees, students, potential students, and parents of students past, present, or future. The goods further could be sold on or adjacent to Duke University’s campuses and at or adjacent to Duke-branded facilities in North Carolina and in other states. In short, it must be presumed that the market and the channels of trade through which Applicant’s applied for goods will travel are identical to those that are currently used by [Duke] and that have been used by [Duke] since long prior to any priority date to which Applicant might be entitled.” Opp. No. 91220555, Notice of Opposition, ¶ 15, pp. 5-6.

This opposition stands as yet another example of higher education’s troubling turn to thought policing in the name of trademark “protection.”  Thematic evocation of Duke University—if that is even what the DRANK UNIVERSITY mark does, which I doubt (and on this point, note that Drake University shares more letters in common with DRANK than does Duke, yet Drake has taken no action)—is not itself actionable, despite college and university efforts to claim exclusive right to arbiter any market references to them.

Moreover, a quick visit to the website for DRANK UNIVERSITY shows how silly any allegation of confusion with Duke University actually is.  Nothing on the site calls to mind Duke University whatsoever.  Of course, Duke’s attorneys would be quick to point out that, should the mark register, hypothetically the mark’s owner could change course and decide to restyle all of its products so that they “thematically evoke” connection with Duke University in a way that confuses consumers.  This essentially is an argument that action now prevents mischief later.  But the key rejoinder is that even if such a circumstance came to fruition, Duke University would not be without recourse: it could sue for trademark infringement.  Owners of trademark registrations take this step from time to time, and the fact that they did not exercise their right to oppose an applicant’s efforts to register the mark at the USPTO cannot be used against them.

In short, use and registration are related but distinct concepts in trademark law.  Better for universities, rooted in the public sphere and dedicated to the public interest, to permit others to engage in non-confusing uses of colors and terms that may call them to mind.  They also should experience real market harm before deciding to take market action.