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Harvard as a model in trademark and domain name protection
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Harvard in trademark and domain protection
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Collegiate licensing has developed into a booming industry (1) since the advent of such programs in the early- to mid-1980s. (2) Colleges and universities learned that their names, logos, and designs, which are the “basic protectable items of commercial value that fans identify with,” (3) are some of their greatest assets. (4) Efforts to establish and protect these “marketable property rights in licensed merchandise” (5) known as trademarks expanded with the explosion of retail sales. (6)
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As is true with the collegiate licensing industry, the Internet has experienced tremendous financial growth in recent years. (7) Consequently, domain names, which were once viewed solely as identifiers on the Internet, (8) underwent a transformation in economic importance (9) similar to that of university trademarks. Colleges and universities, like other entities, realized that domain names possess many of the qualities of conventional trademarks, and that they can be used to deceive consumers. (10)
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Since that time, institutions of higher education have taken steps to protect their names and logos. First, many have registered, and are continuing to register, “domain names that are identical to, or confusingly similar to, their trademarks to minimize instances of trademark infringement.” (11) They also have resorted to litigation, bringing claims for trademark infringement, trademark dilution, and unfair competition under the federal Lanham Act, numerous state statutes, and common law. (12) In addition, some have sued under the Anti-Cybersquatting Consumer Protection Act, which was enacted as part of the Intellectual Property and Communications Omnibus Reform Act of 1999. (13) Finally, many colleges and universities are establishing and expanding their monitoring programs. (14)
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This Note will examine Harvard University’s (“Harvard,” “the University,” “the school”) numerous methods to safeguard its trademarks, including domain names, on the Internet. Harvard is used as a paradigm because, besides serving as a leader in academia and research, it is on the forefront of trademark protection on the Internet. It recently brought several lawsuits to safeguard its marks, and it also reworked its policies to strengthen its protective measures. Higher education administrators of other educational institutions, intellectual property attorneys, and legal scholars have much to gain from studying Harvard’s approaches.
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A. Purposes of Trademarks
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Trademarks are “word[s], name[s], symbol[s], or device[s], or any combination thereof” adopted and used by manufacturers or merchants to “identify and distinguish” their goods from “those manufactured or sold by others.” (15) Currently, trademarks fulfill several important functions. (16) First, given that they differentiate products and services among merchants, (17) trademarks help protect their owners’ “investment of time, energy[,] and money.” (18) They also indicate that all goods and services on which they appear originate from a single source and are of comparable quality. (19) Consequently, trademarks eliminate consumer confusion and prevent loss of customers because they guarantee that purchasers will receive the goods or services they want when they choose ones bearing particular trademarks. (20) Finally, trademarks are powerful marketing tools. (21) Justice Frankfurter, noting this effectiveness in advertising, once remarked that:
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The protection of trade-marks is the law’s
recognition of the psychological function of
symbols. If it is true that we live by symbols, it is
no less true that we purchase goods by them. A
trade-mark is a merchandising short-cut which
induces a purchaser to select what he wants, or
what he has been led to believe he wants. (22)
B. Common Law Protection of Trademarks in the United States
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Regardless of whether names are registered, the common law provides trademark owners with a cause of action for unfair competition. (23) Owners must prove that they alone are entitled to use the marks, and that the defendant’s use of identical or resembling marks led to consumer confusion about the products’ or services’ origin. (24)
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C. Statutory Protection of Trademarks in the United States
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Federal and state statutory protection of trademarks developed from the common law. (25) The Trademark Act of 1946, which was amended in 1988 and is often known as the Lanham Act, governs federal trademark law. (26) To receive protection of their “exclusive rights to use” a mark nationwide against subsequent users of the mark for related products or services, (27) trademark owners must federally register their marks with the United States Patent and Trademark Office (“USPTO”). (28) The USPTO will permit registration only if owners prove their marks’ distinctiveness, (29) or their “‘capacity … to distinguish a product or service which emanates from one source, from products or services emanating from other sources.'” (30)
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The Lanham Act affords several causes of action. For instance, once owners of unregistered marks establish an independent basis for a federal court to hear their case by demonstrating that alleged misconduct occurred in or affected interstate commerce, they may sue for unfair competition on any or all of the following bases under section 43(a) of the Lanham Act: false designation of origin, false advertising, and disparagement. (31) To prevail, plaintiffs must prove: “(1) nonfunctionality
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Section 32 of the Lanham Act, on the other hand, provides owners of registered trademarks with a cause of action for trademark infringement. (33) Trademark infringement is:
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the reproduction, counterfeiting, copying or
imitation in commerce of a registered mark “in
connection with the sale, offering for sale,
distribution, or advertising of any goods or services
on or in connection with which such use is likely to
cause confusion, or to cause mistake or to deceive”
without consent of the registrant. (34)
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A claim for trademark infringement requires proof of priority of use, “as with all claims asserted under the Act.” (35) In essence, the court first must consider whether “the plaintiff ha[s] a protected right in the mark.” (36) If the court does conclude that the Lanham Act entitles the owner to trademark protection, it must then decide whether a likelihood of confusion results from the defendant’s application of the mark. (37)
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The Federal Trademark Dilution Act of 1995 (“FTDA”) “amends the Lanham Act” to provide a cause of action for owners who believe that another’s conduct harms their own famous marks. (38) Its additional provision, section 43(c), (39) offers a claim for dilution, which is “the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of presence or absence of: (1) competition between the owner of the famous mark and other parties
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D. Case Law Protecting Universities’ Trademarks
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Courts first recognized colleges and universities’ “protectable interest in their names and insignia” (41) in 1930. (42) In Trustees of Columbia Univ. v. Axenfeld, the New York Supreme Court concluded that the defendants called their educational service “Columbia Educational Institute” to intentionally lead the public to believe that it was the same as, or affiliated with, Columbia University. (43) Stating that the defendants could not adopt “[the] great name and standing among the educational institutions of the country” that Columbia had acquired, the court granted injunctive relief to the University. (44)
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Similarly, in Cornell Univ. v. Messing Bakeries, the New York Supreme Court, Appellate Division, explained that an educational institution that has invested a great deal of time, effort, and money to earn public praise “ought not, against its will, have the prestige diluted by a commercial use of its name, suggesting connection or benefit to the institution from the enterprise.” (45) The court upheld a finding that a baker who relied on a recipe developed by a Cornell University professor to make bread, which he later marketed as “Cornell Recipe Bread,” negatively impacted the University’s rights. (46) The court ultimately ruled that the defendant could not use the name “Cornell” without permission from Cornell University. (47)
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Since Axenfeld and Messing Bakeries, the issue of colleges’ and universities’ rights in their marks has arisen in different contexts. Although specific holdings vary, the courts have consistently reaffirmed the basic principle established in those two landmark cases. (48)
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E. The Anti-Cybersquatting Consumer Protection Act
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Before Congress enacted the Anti-Cybersquatting Consumer Protection Act (“ACPA”), owners of famous marks had few tools at their disposal with which to successfully battle cybersquatters. (49) Trademark owners could prevent deceitful uses, but could do little to stop the “hold-up” if the cybersquatter was not using the domain name currently, or if he used it for an obviously different good or service. (50) Some owners sued for unfair competition, trademark infringement, and/or trademark dilution, and prevailed, only to find themselves left with tremendous litigation bills and the “partially inadequate” (51) remedy of an injunction. (52) Others took what they deemed the more economically sound approach to procure domain names that embodied their marks and “‘pa[id] off'” the cybersquatters. (53)
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The ACPA provided trademark owners with new ammunition by offering a powerful way to frustrate cybersquatters, who harm “American consumers, businesses and the future of electronic commerce.” (54) The ACPA amended the Lanham Act to hold liable any individual who “has a bad faith intent to profit from [an owner’s] mark” and who “registers, traffics in, or uses a domain name that,” at the time it is registered, is “identical or confusingly similar to [a distinctive] mark,” is “identical or confusingly similar to or dilutive of [a famous] mark,” or is “a trademark, word, or name protected [under] section 706 of title 18, United States Code, or section 220506 of title 36, United States Code.” (55)
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The trademark owner, through federal registration or by common law, may seek a court order requiring the cyberpirate to abandon, cancel, or transfer the domain name. (56) He or she might also be entitled to statutory damages ranging from $1,000 to $100,000 per domain name or actual damages. (57) Although the act is retroactive, plaintiffs will not be granted such damage awards for cyberpiracy that occurred prior to November 29, 1999, the date the bill was enacted. (58)
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A. President and Fellows of Harvard College v. Rhys
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One university that has made good use of the ACPA is Harvard. The school sued Michael Rys d/b/a/ Web-Pro and Michael Douglas d/b/a Web Productions (“Rhys” or “the defendant”), who turned out to be the same individual, (59) for cyberpiracy one week after the ACPA’s enactment. (60) The complaint, which was filed on December 6, 1999 in the United States District Court for the District of Massachusetts, (61) alleged trademark dilution, trademark infringement, cyberpiracy, unfair competition, and related state law violations. (62) Harvard sought preliminary and permanent injunctions, an accounting of profits earned from the infringing and diluting activities, and destruction of all infringing and diluting goods. (63)
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The University claimed that it had invested vast amounts of money “to extensively promot[e] and advertis[e] its goods and services” using the “Harvard” and “Radcliffe” marks (“Harvard’s marks”), (64) which now were “assets of incalculable value to Harvard.” (65) Harvard claimed that, because of such expansive marketing efforts and its long and renowned history, “the [‘Harvard’] mark had become famous and the [‘Radcliffe’] mark distinctive and well known,” long before the defendants’ conduct. (66)
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Harvard claimed that, on October 5, 1999, Rhys offered Harvard via e-mail the “‘first right of refusal'” for domain names before he tried to sell them to the public. (67) According to Harvard, it sent a cease and desist letter to Rhys, demanding that he “instruct NSI [Network Solutions, Inc.] to terminate the domain name registrations.” (68) Harvard alleged that, although it had asked him to respond in writing by November 22, 1999, Rhys had not replied as of the date it filed its complaint. (69)
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The school maintained that the defendant had constructive notice of its ownership of Harvard’s marks when he “adopt[ed], register[ed], maintain[ed], and offer[ed] to sell or license” without permission (70) sixty-five domain names incorporating the marks, (71) such as www.harvard-lawschool.com and www.radcliffcollege.com
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Specifically, Harvard asserted that Rhys’s unauthorized activities in interstate commerce “lessened and diluted and will continue to lessen and dilute, the distinctive quality of [its] famous [‘Harvard’] mark.” (75) Harvard claimed that Rhys infringed upon its rights as well because consumers could mistake his products and services as being affiliated with Harvard. (76) Also, this likelihood of consumer confusion and the defendant’s “use of a false designation of origin or a false or misleading representation” (77) were the basis for a section 43(a) claim. (78) Finally, given his “bad faith intent to profit from Harvard’s … marks” (79) and the “confusing[] similar[ity]” between his marks and its marks, (80) Harvard alleged that Rhys committed cyberpiracy. (81)
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A consent judgement was issued on March 14, 2000. (82) The court required Rhys, inter alia, to remove all references to Harvard’s marks from his web sites, to immediately cancel the registrations of the infringing and diluting domain names, to supply lists of domain names containing Harvard’s marks which he registered, regardless of whether he currently owned them, and to turn over all materials which contained Harvard’s marks and which he possessed or controlled. (83) Thus, one of the first parties to bring a lawsuit under the ACPA prevailed.
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B. President and Fellows of Harvard College v. Eschool, Inc.
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Almost as soon as its dispute with Rhys ended, Harvard engaged in another domain name battle, this time with Eschool, Inc. d/b/a notHarvard.com. (84) Eschool (“Eschool,” “the company,” or “the defendant”), a company based in Austin, Texas, (85) supplied educational courses and programs called “‘online universities'” to private corporations. (86) The corporations then used these classes, which covered subjects related to their goods or services, to attract online customers to their products. (87) It used the name “notHarvard.com” in association with these “‘online universities'” without Harvard’s permission. (88)
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It all began when Eschool failed to secure federal registration for its trademark and domain name: much to the company’s dismay, the USPTO determined that consumers would likely confuse “notHarvard.com” with “Harvard” because the marks and the entities’ services were so similar. (89) Eschool predicted that Harvard would bring suit, as did others. (90)
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On July 27, 2000, over four months after the trademark examiner mailed the rejection, (91) the company filed a complaint in the United States District Court for the Western District of Texas (92) as a preventive measure, seeking a declaratory judgement that the use of its name did not infringe Harvard’s mark. (93) Judith Bitterli, Eschool’s CEO at the time, is quoted as saying, “[w]e believe that it is prudent for us to assure that no trademark issues will arise later, as our company and its brand becomes more established. Because it appears Harvard may be evaluating trademark issues, we are taking steps to resolve these matters now, not later.” (94) Some viewed the suit as a “preemptive legal strike aimed at staking the jurisdiction of the conflict in Texas rather than Massachusetts, where a judge presumably would be more sympathetic to Harvard[].” (95)
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Harvard then sued Eschool on July 31, 2000 in the United States District Court for the District of Massachusetts. (96) Alleging trademark infringement, trademark dilution, false designation of origin, unfair competition and cyperpiracy, (97) Harvard requested preliminary and permanent injunctive relief, as well as damages. (98)
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In its complaint, Harvard pointed out that its registrations of the “Harvard” mark with many goods and services, including “education, … publishing, research, health care, business management, investments, real estate, legal services, and various items of merchandise,” (99) served as “constructive notice to Eschool of Harvard’s claim of ownership of the [‘Harvard’] mark” for use in these arenas. (100) Despite this constructive notice, Harvard alleged that Eschool chose “notHarvard and notHarvard.com” as names for its business in an effort “to trade on the image” (101) of excellence and “substantial goodwill” (102) that the “Harvard” mark has earned worldwide from its “inherent distinctiveness,” from hundreds of years of widespread use, and from the school’s expensive marketing campaigns. (103)
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To support a finding of likelihood of confusion and prevail on its trademark infringement claim, Harvard asserted that the “Harvard” mark was famous and thus “extremely strong” (104) and that this mark and the “notHarvard” mark were basically identical, except for the word “not,” which is generic and does not distinguish them. (105)
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Harvard raised some interesting points about the appearance of “notHarvard” on its web site as well. The school argued that Eschool accentuated the “Harvard” mark embodied in “notHarvard” by capitalizing the letter H in “notHarvard,” but leaving the letter n of the generic word “not,” in lowercase. (106) Harvard’s papers also stated that Eschool attracted people’s attention to the “Harvard” segment of “notHarvard” by presenting “‘not’ in red and ‘Harvard’ in black,” (107) which is a “darker color.” (108)
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The University also argued the similarity of Eschool’s and its own services, given that both were educational in nature. Furthermore, it asserted that “the channels of trade,” marketing, and potential clientele were similar, as evidenced by Harvard’s use of a detailed web page at “www.harvard.edu” and by the common goal of attracting individuals concerned about online instructional services. (109)
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Harvard continued that, as the USPTO had concluded when it denied Eschool’s registrations, the public may incorrectly believe that “notHarvard” was affiliated with Harvard. (110) For example, viewers may believe that “notHarvard” was an off-campus extension school or correspondence program of the University. Harvard also argued that use of the “notHarvard.com” name caused Internet users to “mistakenly go to Eschool’s web site” when they intended to go to that of Harvard. (111)
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Eschool attacked Harvard’s trademark infringement claim by addressing each of the factors that a court may consider when it determines whether a lack of confusion exists. (112) For instance, Eschool distinguished its services, which consisted of organizing “web site learning centers” as part of companies’ promotional strategies, from Harvard’s, which was “‘providing instruction and training at the undergraduate, graduate, post-graduate and professional levels.'” (113) Eschool stated that it “did not offer any online or distance learning courses using the notHarvard.com name.” (114) Moreover, it “was not an academic institution and id not offer any courses accredited by any academic institution.” (115)
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Eschool stressed other differences as well. It emphasized the dissimilarity of channels of trade, stating that it offered “services through the web sites of client-companies over the Internet,” while Harvard offered services to students in Cambridge, Massachusetts. (116) According to Eschool, there was an advertising distinction as well
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Eschool also contrasted its customers, which are businesses that try to sell goods or services online, with those of Harvard, who were students seeking admission to its various schools. (119) Eschool argued that Harvard’s clientele ordinarily were extremely bright and would recognize at once that “notHarvard.com” differed from “Harvard.” (120) It pointed out that “even if these students were to input the name ‘Harvard’ into five of the most common search engines, they would not pull up a ‘hit’ on notHarvard.com.” (121)
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Moreover, the company asserted that it “registered and used the domain name “notHarvard.com” in good faith, with the belief that its use of the name would not be illegal.” (122) According to Eschool, it selected this name “because it wanted to highlight its business model as a business to business solution, not as an academic solution.” (123) While Harvard had gained recognition as a premier educational institution, Eschool hoped to gain recognition as a business that offered customers “opportunities to buy merchandise in the context of a learning experience.” (124) As further evidence of good faith, Eschool stated that it never “offered to sell, transfer, or assign any domain names to Harvard or to anyone else.” (125)
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Eschool also reminded the court that, although it had used the “notHarvard.com” name for more than a year, “‘Harvard ha[d] not yet uncovered any direct evidence of actual confusion caused by Eschool’s use of the notHarvard name.'” (126) The lack of direct evidence of actual confusion, Eschool argued, further bolstered its argument that there was no likelihood of confusion. (127) Without likelihood of confusion, there could be no trademark infringement. (128)
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Regardless of whether a likelihood of confusion occurred, (129) Harvard claimed, the “notHarvard” name diluted Harvard’s famous mark. (130) It alleged that Eschool’s mark “cheapen[ed] and tarnish[ed]” its mark (131) because whenever customers came across “notHarvard,” they instantly associated the “Harvard” mark, which symbolizes the “charitable non-profit corporation” (132) that operates the renowned “teaching, learning and research institution” (133) of Harvard University, with Eschool’s “for-profit” business. (134)
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Moreover, Harvard believed that people eventually would think of both Eschool’s and its services when they saw “Harvard”
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Eschool asserted that Harvard lacked a claim under the FTDA for several reasons. (138) First, Eschool maintained that Harvard could not demonstrate that the “Harvard” mark was “‘distinctive and famous'” under the statute. (139) To support its contention, Eschool pointed to a case involving another member of the Ivy League. (140) Trustees of Columbia Univ. v. Columbia/HICA Healthcare Corp. held that Columbia did not have a dilution claim because, in part, “‘any acquired distinctiveness of [its] mark in connection with medical or healthcare services ha[d] been seriously undermined by third party use of the same or similar marks within New York and across the United States.'” (141) Eschool, drawing an analogy between this case and Harvard’s, introduced an affidavit stating that hundreds of American corporations’ names’ contain “Harvard,” and that many trademark registrations include “Harvard” but are unaffiliated with Harvard University. (142) Thus, the start-up company argued that the applicability of Columbia/HICA Healthcare Corp. holding that third party use of identical or similar marks “seriously undermined” the “Harvard” mark’s acquired distinctiveness. (143)
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The defendant also argued that Harvard could not meet the “substantial similarity” element of such a cause of action for dilution. (144) Eschool claimed that certain features of its “notHarvard.com” mark, such as the word “not” boldly featured in red and the “.com” ending, sufficiently distinguished it from Harvard’s. (145)
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Finally, the company claimed that Harvard’s dilution claim lacked merit because the school could not establish either type of dilution. (146) For instance, Eschool argued that Harvard presented no evidence to show dilution by blurring, namely, that its “students or customers … [we]re … likely to associate [its] ‘educational services of the highest caliber’ with [Harvard’s] online university web sites….'” (147) The company also reminded the court that Harvard admitted in its memorandum that such web sites “‘[we]re not universities at all, but rather commercial ventures with private companies designed to entice people into purchasing products over the Internet.'” (148)
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Eschool also pointed to the lack of evidence to support Harvard’s “tarnishment” claim. (149) It stated:
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[Harvard] claimed, in conclusory terms, that
“every time customers encountered the
notHarvard mark, they w[ould] of necessity
associate the Harvard mark with the online
universities” provided by [Eschool], thus
cheapening and tarnishing [Harvard]’s mark…. If
this happened “every time” as [Harvard] alleged,
however, it would certainly provide proof of this
association. (150)
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Eschool further argued that it could not tarnish the “Harvard” mark because its services “[we]re praised in the industry as being of excellent quality,” and Harvard did not demonstrate that “notHarvard.com” diminished people’s opinion of the school’s educational services. (151)
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Harvard also sued for unfair competition under the Lanham Act and state common law based on the grounds set forth in its trademark infringement and trademark dilution causes of action. (152)
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For the reasons offered in its attack of Harvard’s dilution and trademark infringement claims, Eschool asserted that the school lacked a federal and state cause of action for unfair competition. (153)
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Harvard also sued for cyberpiracy, claiming that Eschool, without permission and with a “bad faith intent to profit” from the “Harvard” mark, (154) registered “notharvard.com” in or about June 1999, and “notnotharvard.com,” “notharvardu.com,” and “notharvarduniversity.com” in or about January 2000
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Both the complaint and memorandum of law in support of plaintiff’s motion for preliminary injunction discuss at length evidence of intent. For example, Harvard quoted an article featured on Eschool’s web site, which read, “‘The company’s name … has gotten people’s attention, notHarvard says it … is inundated with requests for T-shirts, which are printed with a crimson design bearing similarities to the famous Ivy League logo.'” (156) In addition, Eschool boldly displayed this portion of a quote: “‘They’ve got one of the great names. For the 2,000 people they piss off, millions identify with it.'” (157)
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In addition, Harvard stated that Eschool’s founder “had an ax to grind with academic institutions….” (158) It pointed out that “in published interviews, he had stated that he was ‘kicked out’ of Georgetown University before his freshman year even began, and was later asked to leave the University of Texas at Austin due to poor grades.” (159) Furthermore, as explained in an article featured on Eschool’s web site, the company’s founder originally planned to call it “Project G-Town, an obvious reference to Georgetown University.” (160)
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Eschool first countered Harvard’s claim that Eschool’s use and registration of domain names featuring “Harvard” amounted to cyberpiracy by arguing that the ACPA did not apply to Harvard’s suit. (161) The company claimed that the “Harvard” mark was not “‘famous’ and ‘distinctive’ within the meaning of the ACPA” for the same reasons it gave in its attack of the University’s dilution claim. (162) The company also asserted that it had used “notHarvard.com” in connection with its services. Thus, its use did not fall under the Act, which requires that a defendant use another’s name “‘without regard to the goods and services of the parties.'” (163)
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Eschool alternatively argued that, even if the ACPA applied to Harvard’s suit, the school lacked a cause of action because it failed to demonstrate “‘bad faith.'” (164) The company stated that it never offered to sell “notHarvard.com” to Harvard. (165) According to the company, it also never attempted to sell the few other domain names containing “Harvard” that it registered. (166)
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Proving that it “[was] highly likely to prevail on the merits of its claim and [would] suffer irreparable harm in the absence of a preliminary injunction,” (167) Harvard secured preliminary injunctive relief against Eschool on September 25, 2000. (168) Then, on October 10, 2000, the starting date of the trial, Harvard settled with Eschool, which already had changed its name from “notHarvard.com” to “Powered.com.” (169) Eschool agreed to acknowledge that its prior use of “notHarvard.com” had diluted and infringed the “Harvard” mark. (170) It also promised to transfer ownership of the name to Harvard by December 15, 2000. (171) Finally, the start-up company consented to abandon the trademark applications it had filed with the USPTO regarding domain names that contained “Harvard.” (172) The settlement did not award damages to the University, which ultimately had decided not to pursue such relief in the hopes that doing so would result in a swifter resolution of the conflict. (173)
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Harvard entered into litigation against Eschool with foresight. As evidenced by its pledge to continue the suit even after Eschool changed its name to “Powered.com,” (174) Harvard maintained its dedication to long-term protection of its domain names. University spokesman Joe Wrinn attributed the school’s persistence in its action against the company to its desire for “a ‘solution that’s legally enforceable,'” rather than “merely ‘an individual’s promise.'” (175) Indicating that the University believed it had achieved what it set out to accomplish by bringing suit, Wrinn told the press, “‘Now we have a judgment on the part of the court agreeing with us. It will be more useful if something like this comes up in the future.'” (176)
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IV. HARVARD’S NEW GUIDELINES CONCERNING USE OF UNIVERSITY NAMES IN THE ELECTRONIC ARENA
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Harvard has not just relied on litigation as a means to protect its domain names
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On April 18, 2000, Harvard’s provost, Harvey V. Fineberg, issued new guidelines for using Harvard names in web pages, domain names, and e-mail addresses in response to the many inquiries it had received regarding such matters. (181) Fineberg stated, “‘This new policy is one of a number of recent efforts aimed at protecting Harvard’s name and trademarks. Because of the increasing importance of electronic communication, we want to make it clear to the Harvard community what the rules are in this realm.'” (182)
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Not only do the University’s deans and provosts drive the revision process, but they also play vital roles in ensuring the policy’s effectiveness. The latest version of the school’s policy, posted online in December 2000, informs the public that people who wish to use the Harvard name “in any form (including abbreviations or in combination with other words) … in an internet address, an e-mail address (other than one which consists solely of an individual’s name, e.g. jane_doe@harvard.edu), or a web site identification, must receive “advance permission of the appropriate official.” (183) Thus, the school’s provost must agree to use of “Harvard,” and, in the case of a particular school’s name, the dean of that school must grant approval. (184) Harvard makes it clear that “electronic communication or activity is treated similar[ly] to other activities which require advance permission for the use of the University’s name or insignias.” (185)
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Another provision reminds people that, as is true with trademarks, Harvard University must own all domain names that include “Harvard” or any individual school name “in any form.” (186) Domain names of organizations that are associated with Harvard or that have received prior authorization must be registered under “‘the President and Fellows of Harvard College.'” (187) Those who wish to register domain names that embody Harvard or the name of a Harvard school and that are “outside of the harvard.edu domain” need to contact Harvard’s Network Operations Center. (188)
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The revised policy also includes guidelines for suitable domain names. (189) Those who use domain names that feature a Harvard name must make sure that the domain names correctly depict “the activity or program to which they refer.” (190) Also, “.edu” or “.org” will be the suitable domain for most activities. (191) Explicit approval by the provost is necessary for registration of domain names in “.com” or “.net.” (192)
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V. REASONS FOR HARVARD’S SUCCESS IN TRADEMARK AND DOMAIN NAME PROTECTION
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Harvard is “the oldest institution of higher learning in the United States,” (193) and one of the most prestigious educational institutions in the world. (194) It also is among the most ardent protectors of trademarks and domain names. Adopting various methods to trademark and domain name protection, Harvard serves as a paradigm for fellow colleges and universities.
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The school uses all of the tools at its disposal to preserve the fruits of centuries of successful promotion of its reputation for excellence. Harvard sued for cyberpiracy one week after the ACPA was enacted, (195) and it has relied on the statute ever since as another means to preserve its good name. Although the school does not hesitate to bring lawsuits when necessary, it tries to resolve disputes effectively, as evidenced by recent cases.
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Harvard also regularly reviews its policies regarding use of university names, and it adapts them to its changing needs. (196) The school inevitably benefits from the involvement of officials in various capacities. (197) People from different schools and departments share the concerns of the individual realms they represent on the issue of domain name misuse, (198) and many suggestions are combined to produce guidelines that are designed to meet the needs of the entire university. The number of administrators involved seems just right
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Moreover, Harvard’s newly revised “University Policy on the Use of Harvard Names and Insignias” is clear and concise. Harvard’s recently issued guidelines concerning the use of Harvard’s names in “electronic contexts” (199) is consistent with guidelines addressing their use in other situations. These features will cut down on unintentional misuse of Harvard’s marks while simultaneously supporting Harvard’s arguments of alleged infringers’ bad faith, which is a requirement for claims under the ACPA. (200) With such an easily understandable policy, defendants will have a very difficult time convincing a court that they did not intend to dilute or infringe upon Harvard’s domain names.
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Another notable feature of the guidelines is that they offer people who wish to use a domain name embodying a university mark a systematic approach to authorization. Approval responsibilities are disbursed among several individuals, and prospective users are assigned to a particular person according to the desired domain name. (201) Given the size of the school and its numerous branches, such a highly organized system is extremely important.
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VI. THE ADAPTATION OF HARVARD’S APPROACHES TO FIT WITHIN THE CONSTRAINTS OF PARTICULAR SCHOOLS
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Although many institutions of higher learning do not enjoy a level of renown comparable to Harvard’s, all schools rely on their names and marks as their major sources of revenue. (202) No matter their academic tier or athletic conference and division, educational institutions devote much time and money toward constantly improving their reputation in everything from curricula to career services to college sports. Therefore, colleges and universities across the United States must fiercely guard against infringement and dilution of their names and marks.
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Most schools do not have available to them as many choices for domain name protection as Harvard because they have fewer financial resources. Nor can they afford to utilize the avenues that are open to them as frequently, or to the extent that Harvard does. However, they still can learn much from Harvard’s strategies. Colleges and universities, facing continuous pressure to gain recognition, may forget the importance of safeguarding the good reputation they have earned. They need to devote more time and money to trademark protection, which now embraces the ever-expanding Internet arena.
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All schools can strengthen their trademark policies, as Harvard has done and continues to do. If these documents are thorough, yet at the same time comprehensible, they can serve as solid foundations for trademark and domain name protection. The periodic review and revision of policy statements probably will not prove too burdensome, especially considering the benefits derived. These schools, following Harvard’s lead, could include many different voices in the design of a policy that meets current needs. Just as their counterpart depends on its provosts and deans in both the implementation and enforcement of trademark guidelines, schools need to involve various officials at every stage. Relying on Harvard’s policy on trademark use as a model, colleges and universities can develop highly organized authorization procedures for potential users of domain names embodying school marks. If they carefully allot approval responsibilities among various administrators, schools will prevent a considerable amount of misuse while simultaneously raising awareness of trademark infringement, dilution, and cybersquatting concerns.
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Educational institutions also can increase fundraising efforts and devote some of the money raised to the rising fees and salaries of attorneys, whose services become even more necessary as new legal issues arise and old ones take on heightened levels of complexity.
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Members of general university counsel usually are involved in domain name protection, but that is only one of their many responsibilities. Aware that these lawyers often are spread so thin, schools who can afford the investment will establish trademark licensing offices. Although trademark office staff may not be staffed with attorneys, let alone trademark attorneys, they may serve as an “eagle eye” by keeping abreast of cybersquatting issues, successful approaches to protection, and potential cybersquatting threats for their institutions.
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Given the crucial role that trademark offices play in safeguarding names, marks, and domain names, no university or college should be without one. Schools without such departments should make their establishment, or, at the very least, the hiring a trademark administrator, a top priority. Those that already have implemented trademark protection programs should expand them when resources allow. While these offices can handle daily monitoring, schools should remember that they might need to seek additional assistance from outside counsel when circumstances require.
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Colleges and universities must see to it that litigation serves as a viable option for domain name protection
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All institutions of higher education ideally would possess the wherewithal to adopt every suggestion given. If so, they could drastically reduce the occurrence of trademark infringement, trademark dilution, and cybersquatting, and could seek compensation for harm caused by such acts. The reality is that a school’s ability to protect its name, marks, and domain names is limited by many factors, including its financial resources, size, and reputation. Not every school can be a Harvard.
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Despite inevitable constraints, colleges and universities are not powerless in the war against conventional trademark and domain name misuse. Once dedicated to safeguarding their names and marks, they can experiment with strategies that have proven successful. Harvard’s blend of approaches serves as a model for any school
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(1.) Bruce B. Siegal, Esq., Case Studies in IP Enforcement, in PROTECTING YOUR INTELLECTUAL PROPERTY: HOW TO VALUE, MAXIMIZE, AND ENHANCE YOUR Assets, 441, 447 (PLI Patents, Copyrights, Trademarks, & Literary Property Course, Handbook Series No. G4-3995, 1997).
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(2.) Robert Lattinville, Logo Cops: The Law and Business of Collegiate Licensing, 5 KAN. J.L. & PUB. POL’Y 81, 81 (1996) (citing Bd. of Trs. of Univ. of Ark. v. Prof’l Therapy Servs., 873 F. Supp. 1280 (W.D. Ark. 1995)).
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(3.) Andrew D. Baharlias, … Yes, I Think the Yankees Might Sue If We Named Our Popcorn ‘Yankees Toffee Crunch.’ A Comprehensive Look at Trademark Infringement Defenses in the Context of the Professional and Collegiate Sports Industry, 8 SETON HALL J. SPORT L. 99, 103 (1998) (citing Steven N. Geise, A Whole New Ballgame: The Application of Trademark Law to Sports Mark Litigation, 5 SETON HALL J. SPORT L. 553, 564 (1995)
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(4.) Anne H. Chasser, How to Develop a Brand-Name University, 5 No. 1 INTELL. PROP. STRATEGIST 1, 1 (1998).
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(5.) Lattinville, supra note 2, at 82.
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(6.) Siegal, supra note 1, at 447.
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(7.) James M. Jordan, III, Domain Names: Basics, Pointers, and Current Events, 2 No. 1 ELEC. BANKING L. & COM. REP. 12 (1997). * Publication page references are unavailable online.
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(8.) See Richard Raysman & Peter Brown, Domain Names: Protecting Trademarks on the Internet, 215 N.Y. L.J., June 11, 1996, at 3
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(9.) See Stewart & Bednarek, supra note 8, at c1.
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(10.) Jordan, supra note 7.
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(12.) Ed Colbert et al., United States: The Anti-Cybersquatting Consumer Protection Act Primer–Kenyon & Kenyon, MONDAQ BUS. BRIEFING (August 24, 2001). * Publication page references are unavailable online.
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(13.) Jeff Riffer, New Federal Law on Cybersquatting Signed, 4 INTERNET NEWSLETTER: LEGAL AND BUS. ASPECTS 1 (1999). * Publication page references are unavailable online.
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(14.) See, e.g., Erin LaRuffa, U. Notre Dame: “Cybersquatters” Make Monitoring Essential for Notre Dame, Other Schools, THE OBSERVER, Feb. 1, 2000, http://www.nd.edu/~observer/02012000/News/0.html.
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(15.) 15 U.S.C. [section] 1127 (1946).
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(16.) Celeste L. Geier, Protection of University Symbols, 38 BAYLOR L. REV. 661, 663 (1986) (citing 1 J. THOMAS MCCARTHY, TRADEMARKS AND UNFAIR COMPETITION [section] 3:1 (2d ed. 1984)).
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(17.) Id. (citing LANHAM ACT, 15 U.S.C. [section] 1127)
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(18.) Id. (citing HARRY A. TOULMIN, JR., THE TRADEMARK ACT OF 1946 ANALYZED, ANNOTATED AND EXPLAINED 4 (1946)
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(19.) Id. at 663-64 (citations omitted).
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(20.) Id. at 664 (citing HARRY A. TOULMIN, JR., THE TRADEMARK ACT OF 1946 ANALYZED, ANNOTATED AND EXPLAINED 4 (1946)).
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(21.) Id. (citing Northam Warren Corp. v. Universal Cosmetic Co., 18 F.2d 774, 774-75 (7th Cir. 1927)).
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(22.) Id. at 664 n.17 (citing Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresage Co., 316 U.S. 203, 205 (1941)).
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(23.) Joachim F. Reimertshofer, Trademark Protection of Intercollegiate Names, Logos, Colors, and Trade Dress–A Comparison Between the United States and Germany, 10 N.Y. INT’L L. REV. 131, 140 (1997) (citing MICHAEL A. EPSTEIN, MODERN INTELLECTUAL PROPERTY 7-7 (3d ed. 1995)
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(24.) Id. (citing RESTATEMENT (THIRD) OF UNFAIR COMPETITION [section] 22 (1995)).
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(25.) Id. at 136 (citations omitted).
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(26.) Id. at 137 (citing 15 U.S.C. [subsection] 1051, et seq. (1996)).
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(27.) Lattinville, supra note 2, at 82.
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(28.) Reimertshofer, supra note 23, at 137 (citing 15 U.S.C. [section] 1051 (1996)). Three bases for federal registration exist: “(1) registration based on prior use of a mark [in interstate commerce]
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(29.) See Reimertshofer, supra note 23, at 137.
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(30.) Geier, supra note 16, at 668 (quoting 3 R. CALLMANN, THE LAW OF UNFAIR COMPETITION, TRADEMARKS, AND MONOPOLIES [section] 18.01 (4th ed. 1983)).
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The requirement of distinctiveness encompasses three separate
attributes of the trademark: (1) that the mark is sufficiently
unique to distinguish it from other marks used in connection
with similar goods or services
describe qualities of the goods or services which the goods or
services share with those originating from other sources
(3) that the mark performs as an indication of source, rather
than as a decorative symbol or in some other functional
capacity. Id.
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(31.) Lattinville, supra note 2, at 84 (citing 15 U.S.C. [section] 1125(a) (1994)). One example of unfair competition in the use of domain names is “use of another’s trademark or service mark as part of the domain name or visible text of a web site promoting goods or services similar to those of the trademark owner.” Marcus J. Millet, Same Game in a New Domain–Some Trademark Issues on the Internet, N.J.L., Aug. 1999, at 35 (citations omitted). Use of another’s trademark in a web site’s metatags, “i.e., in the text which normally is not readable by the user, but is readable by search engines,” also amounts to unfair competition. Id.
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(32.) A mark’s secondary meaning is defined as recognition by customers and potential customers that products and services with that mark are provided by or affiliated with the same merchant. Lattinville, supra note 2, at 83 (citing Nat’l Football League Props., Inc. v. Wichita Falls Sportswear, Inc., 532 F. Supp. 651, 658 (W.D. Wash. 1982)). The element of prior use requires plaintiffs to show that they have chosen the trademark to identify the products on which it appears, and that they will market the products with that trademark. Id. at 84 (citing Univ. of Pittsburgh v. Champion Prods., Inc., 566 F. Supp. 711, 722 (W.D. Pa. 1983)). Id. at 84 (citing Univ. of Pittsburgh v. Champion Prods., Inc., 566 F. Supp. 711, 719 (W.D. Pa. 1983)). For the factors courts often consider when determining likelihood of confusion, see Polaroid Corp. v. Polaroid Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961).
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(33.) Lattinville, supra note 2, at 84-85.
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(34.) Glenn M. Wong, Recent Trademark Law Cases Involving Professional and Intercollegiate Sports, 1986 DET. C. L. REV. 87, 89 (1986) (quoting 15 U.S.C. [section] 1114(1)(a) (1946)). For examples of trademark infringement in the domain name context, see supra note 31 and accompanying text.
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(35.) Lattinville, supra note 2, at 85 (citing Steven N. Geise, A Whole New Ballgame: The Application of Trademark Law to Sports Mark Litigation, 5 SETON HALL J. SPORT L. 553, 564 (1995)). Registration is “prima facie evidence of the registrant’s exclusive right to the mark” in association with the commodities or services stipulated in the registration. Id. (citing 15 U.S.C. [section] 1115 (1988)). Occasionally, however, the owner may need to demonstrate the mark’s secondary meaning. Id. (citing 15 U.S.C. [section] 1115 (1988)).
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(38.) Raysman & Brown, supra note 8, at 36. For the facts courts consider when deciding whether a mark is famous, see 15 U.S.C. [section] 1125(c)(1)(A)-(H).
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(39.) 15 U.S.C. [section] 1125(c) (2002).
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(40.) 15 U.S.C. [section] 1127 (1996). Use of a famous trademark as part of a domain name may cause dilution if it “‘blur[s]’ or gradual[ly] whittl[es] away the distinctiveness of the mark” when it denotes a web site that offers “different, non-competing goods.” Millet, supra note 31, at 35. However, dilution in the Internet context usually results from tarnishment, “i.e., unauthorized use of the famous mark in an unwholesome context.” Id.
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(41.) Anne H. Chasser, University Licensing, in DRAFTING LICENSING AGREEMENTS, 257, 259 (PLI Patents, Copyrights, Trademarks, and Literary Property Course, Handbook Series No. G4-3931, 1994).
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(42.) Trs. of Columbia Univ. v. Axenfeld, 241 N.Y.S. 4, 4. (N.Y. Sup. Ct. 1930).
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(45.) 138 N.Y.S.2d 280, 282 (1955), aff’d 128 N.E.2d 421 (N.Y. App. Div. 1955).
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(48.) Examples include: Univ. of Pittsburgh v. Champion Prods., Inc., 686 F.2d 1040 (3d Cir. 1982), on remand (566 F. Supp. 711 (W.D. Pa. 1983) (holding that the doctrine of laches did not bar Pitt’s right to enjoin Champion from producing goods upon which Pitt’s trademarks appeared, even though the university failed to bring an infringement suit for years, because its action could be characterized as mere delay rather than a delay that was so unwarranted that it amounted to abandonment)
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(49.) Colbert et al., supra note 12. Cybersquatters register domain names that mimic famous marks so they can “hol[d] them hostage” and demand huge ransoms from the marks’ legitimate owners or so they can misuse them and create public confusion or deception. Id.
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(51.) Stewart & Bednarek, supra note 8. * Publication page references are unavailable online.
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(52.) Colbert et al., supra note 12.
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(55.) 15 U.S.C. [section] 1125(d)(1)(A) (2002). For the factors a court may consider in deciding whether a defendant acted in bad faith, see 15 U.S.C. [section] 1125(d)(1)(B)(i) (2002).
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(56.) Id. [section] 1125(d)(1)(C).
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(57.) Id. [section] 1117(d).
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(58.) See id. [section] 1129(4).
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(59.) Consent J., President & Fellows of Harvard Coll. v. Rhys, at 1 (No. 99CV 12489RCL) [hereinafter Consent J., Rhys].
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(60.) Shelley Murphy, Harvard Seeks Rights to Own Name in Cyber Suit, THE BOSTON GLOBE, December 8, 1999, at B1.
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(61.) Compl., President & Fellows of Harvard Coll. v. Rhys, [paragraph] 22 (No. 99CV12489RCL).
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(63). Id. [paragraphs] 19-21.
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(64). Id. [paragraph] 19.
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(65). Id. [paragraph] 20.
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(66). Id. [paragraph] 21.
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(67). Id. [paragraph] 33.
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(68). Id. [paragraph] 39.
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(71.) Id. [paragraph] 26.
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(73.) Id. [paragraph] 18.
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(74.) Id. [paragraph] 41.
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(75.) Id. [paragraph] 64.
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(76.) Id. [paragraph] 53.
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(77.) Id. [paragraph] 58.
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(78.) Id. [paragraph] 61.
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(79.) Id. [paragraph] 47.
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(80.) Id. [paragraph] 48.
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(81.) Id. [paragraph] 51.
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(82.) Consent J., Rhys, supra note 59, at 11 (No. 99CV12489RCL).
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(84.) See generally Kate Thompson, College Web Site Sues Harvard, DAILY TEXAN (Aug. 1, 2000), available at http:// tspweb02. tsp. utexas. edu / Interconnect/ INDEX/ STAUFFERGOLD.INTERCONNECT$STORY (last visited Mar. 22, 2003) (on file with the Rutgers Computer & Technology Law Journal).
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(85.) Compl., President & Fellows of Harvard Coll. v. Eschool, [paragraph] 3 (No. 00-CV-11521 RCL) [hereinafter Compl., Eschool].
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(86). Id. [paragraph] 20.
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(89.) David M. DeBartolo, Website, University Exchange Lawsuits, HARVARD CRIMSON (Aug. 4, 2000), available at http://www.thecrimson.com/article.aspx?ref=101326 (last visited Mar. 22, 2003) (on file with the Rutgers Computer & Technology Law Journal).
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(92.) Def.’s Mem. in Opp’n to Pl.’s Motion for a Prelim. Inj., President & Fellows of Harvard Coll. v. Eschool, Inc., at 2 (No. 00-CV-11521 RCL) [hereinafter Def.’s Mem. in Opp’n, Eschool].
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(94.) Thompson, supra note 84
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(95.) DeBartolo, supra note 89.
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(96.) Compl., Eschool, supra note 85, [paragraph] 1.
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(98). Id. [paragraphs] 15-17.
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(100.) Id. [paragraph] 13.
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(101.) Id. [paragraph] 17.
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(102.) Id. [paragraph] 16.
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(103.) See id. [paragraphs] 14-16.
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(104.) Mem. of Law in Supp. of Pl’s Mot. for Prelim. Inj., President & Fellows of Harvard Coll. v. Eschool, Inc., at 12 (No. 00-CV-11521 RCL) [hereinafter Pl.’s Mem. of Law in Supp., Eschool].
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(105.) Id. at 13. Generic marks do not receive trademark protection because they signify the “actual” commodity or service and are not connected with the origin of that commodity or service. Ted Curtis & Joel H. Stempler, So What Do We Name The Team? Trademark Infringement, The Lanham Act and Sports Franchises, 19 COLUM.-VLA J.L. & ARTS 23, 26 (1995). They include words that are commonly used in the English language. Id. Examples of generic words are “tea” and “cola.” See Wong, supra note 34, at 97.
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(106.) See Pl.’s Mem. of Law in Supp., Eschool, supra note 104, at 5.
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(111.) Compl., Eschool, supra note 85, [paragraph] 24.
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(112.) See Def.’s Mem. in Opp’n, Eschool, supra note 92, at 13-17.
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(126.) Id at 16 (citing Pl.’s Mem. of Law in Supp., Eschool, supra note 104, at 15).
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(128.) See id. at 13 (citing I.P Lund Trading ApS v. Kohler Co., 163 F.3d 27, 43 (1st Cir. 1998)
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(129.) See Pl.’s Mem. of Law in Supp., Eschool, supra note 104, at 11 (citing I.P Lund Trading ApS v. Kohler Co., 163 F.3d 27, 48-49 (1st Cir. 1998)).
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(130.) Compl., Eschool, supra note 85, [paragraph] 29.
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(131.) Pl.’s Mem. of Law in Supp., Eschool, supra note 104, at 10.
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(137.) See id. at 11 (citing I.P Lund Trading ApS v. Kohler Co., 163 F.3d 27, 48-49 (1st Cir. 1998)).
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(138.) See Def.’s Mem. in Opp’n, Eschool, supra note 92, at 7-13.
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(140.) See id. at 9-11 (discussing Trs.. of Columbia Univ., 964 F. Supp. 733 (S.D.N.Y. 1997)).
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(141.) Id. at 10 (quoting Trs.. of Columbia Univ., 964 F. Supp. 733, 750 (S.D.N.Y. 1997)).
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(144.) See id. at 11 (citing Mead Data Ctr., Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1029 (2d Cir. 1989)).
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(148.) Id. (citing Pl.’s Mem. of Law in Supp., Eschool, supra note 104, at 1).
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(150.) Id. at 12 (citations omitted).
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(152.) See Compl., Eschool, supra note 85, [paragraphs] 44-45.
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(153.) Def.’s Mem. in Opp’n, Eschool, supra note 92, at 18.
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(154.) Compl., Eschool, supra note 85, [paragraphs] 51-53.
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(155.) Id. [paragraphs] 18-20.
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(156.) Pl.’s Mem. of Law in Supp., Eschool, supra note 104, at 5-6.
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(161.) See Def.’s Mem. in Opp’n, Eschool, supra note 92, at 17.
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(163.) Id. (quoting 15 U.S.C. [section] 1125(d)(1)(A)).
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(167.) Pl.’s Mem. of Law in Supp., Eschool, supra note 104, at 1.
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(168.) See President & Fellows of Harvard Coll. v. Eschool, No. 00-CV-11521 RCL, at 1-3 (D. Mass filed Sept. 29, 2000).
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(169.) See DeBartolo, supra note 89.
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(177.) See generally Vasugi V. Ganeshananthan, Harvard Issues E-Name Rules, HARVARD CRIMSON (April 19, 2000), available at http://www.thecrimson.com/article.aspx?ref=100574 (last visited Mar. 22, 2003) (on file with the Rutgers Computer & Technology Law Journal).
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(181.) Provost Announces Domain Name Policy (April 20, 2000), at http://www.news.harvard.edu/gazette/2000/04.20/domain.html (last visited Mar. 22, 2003) (on file with the Rutgers Computer & Technology Law Journal).
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(183.) Electronic Contexts: Use of Harvard’s Name in Internet Addresses, Domain Names, Web Sites, and Other Electronic Contexts (December 2000), at http:// www. provost. harvard. edu /policies_guidelines/ useofname/ electronic_contexts.php (last visited Mar. 22, 2003) (on file with the Rutgers Computer & Technology Law Journal) [hereinafter Policy].
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(193.) Compl., Rhys, supra note 59, [paragraph] 6.
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(194.) Id. [paragraph] 10.
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(195.) See Murphy, supra note 60.
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(196.) See Ganeshananthan, supra note 177.
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(197.) See generally Policy, supra note 183.
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(198.) See generally Ganeshananthan, supra note 177.
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(199.) Policy, supra note 183.
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(200.) See 15 U.S.C. [section] 1125(d)(1)(A)(i).
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(201.) See generally Policy, supra note 183.
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(202.) See Chasser, supra note 4, at 1.
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Alayne E. Manas, B.A., cum laude, 2000, Brandeis University
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