University[TM]: Trademark Rights Accretion in Higher Education

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TABLE OF CONTENTS  I. INTRODUCTION II. BACKGROUND ON COLLEGE AND UNIVERSITY   TRADEMARK ACTIVITY Trademarks Explained Growth of Colegiate Licensing     1. Background and Early History.     2. The 1980's and the Industry's Emergence     3. Subsequent Growth   C. Notable Examples of Trademark Accretion and     Enforcement in Higher Education  III. A STUDY OF COLLEGE AND UNIVERSITY OWNERSHIP OF TRADEMARKS   A. Methods   B. Limitations  IV. FINDINGS AND IMPLICATIONS   A. Overview of Findings     1. Descriptive Statistics, Top Registrants, and Ownership by Number     2. Trademark Ownership by Institution Type     3. Registrations by Year     4. Trademarks by Type     5. Trademarks by Typology   B. Implications     1. Registration Concerns 

I. INTRODUCTION

Colleges and universities are no strangers to intellectual property. (1) In a higher education environment increasingly challenged by dwindling state appropriations and stagnant or declining tuition revenue, the pressure is on for colleges and universities to generate revenue via new channels. (2) The commercialization of intellectual property has proven to be a popular, albeit imperfect, vehicle in furtherance of these efforts. Although there is no shortage of both legal and higher education commentary focusing on the treatment of patents and copyrights by institutions of higher education, (3) trademark activity by colleges and universities largely has escaped attention. (4)

One obvious explanation for this oversight is that trademark is the outlier of the traditional intellectual property group (i.e., copyright, patent, and trademark). For starters, its fundamental underpinnings differ substantially from those of copyright and patent, both of which were contemplated by the Framers as rights in gross available for authors and inventors for a limited time, in recognition of the need "[t]o promote the Progress of Science and useful Arts." (5) Accordingly, copyright and patent overlay nicely on higher education's traditional charge to create and disseminate new knowledge. Works and innovations protected by these legal regimes also track their creation to individuals, who in higher education consist of the faculty, the traditional locus of resources and power in higher education. (6)

The granting of trademark protection, on the other hand, finds its roots in Congress's ability to regulate commerce between the states. Viewed as a right appurtenant to commercial activity, trademark protection by rights holders exists to protect consumers from confusion in the marketplace over the source of goods and services. This objective is important, but at first blush may seem ancillary to, or even in tension with, higher education's traditional detachment from the market. (7) Instead of individual authors or inventors, the creation of trademark rights also tracks to entities, which in higher education consist of the college or university as an institution, a traditionally secondary actor viewed as subservient to, or at least controlled by, the faculty.

But the history of modern higher education is a story of higher education's gradual embrace of the market (8) and the weakening grip of faculty over issues of governance and decision making. (9) Consistent with these trends, one might expect colleges and universities to have fully embraced the pursuit of trademarks as an activity that serves institutional interests while providing for the possibility of revenue generation Trademarks, after all, have value because of their meaning in the market, as readily attested to by a visit to any Football Bowl Subdivision institution on a Saturday afternoon in the fall. For colleges and universities, trademarks most visibly involve logos and insignia, sweatshirts and jerseys--products made by Nike and Adidas.

It would be easy to think of trademarks in higher education as beginning and ending with marks such as these, and indeed the vast majority of the sparse commentary on trademarks in higher education focuses on collegiate licensing programs and the use of institutional trademarks in athletics. …