Academic journal article Rutgers Computer & Technology Law Journal

Harvard as a Model in Trademark and Domain Name Protection

Academic journal article Rutgers Computer & Technology Law Journal

Harvard as a Model in Trademark and Domain Name Protection

Article excerpt

I. INTRODUCTION

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)

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)

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)

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.

II. BACKGROUND

A. Purposes of Trademarks

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:

   [t]he 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

Regardless of whether names are registered, the common law provides trademark owners with a cause of action for unfair competition. …

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