Monday, February 1, 1999
The Claremont McKenna College Controversey
Intellectual Property or Just Anti-Itellectual?
by Clinton Fein
Instead of dividing the liberal arts and the working world into separate realms, education at Claremont McKenna is rooted in the interplay between the world of ideas and the world of events. By combining the intellectual breadth of the liberal arts with the more pragmatic concerns of public affairs, CMC helps students to gain the vision, skills, and values necessary for leadership in all sectors of society.
- Excerpt from the CMC Course Catalog
Claremont McKenna College learnt a valuable lesson in intellectual property law last week. Interestingly, however, it was the students, not educators, who taught the faculty a crash course in Internet trademark law, the First Amendment, and the power of acting upon noble convictions in the face of threats or adversity.
Currently residing on Geocities (soon perhaps on Yahoo), claremontmckenna.com is a vibrant publication put together by a group of enterprising students to "provide pertinent and updated information and ideas for current and prospective students of the Claremont Colleges as well as an online center for students to voice their opinions, untainted by the regulations of the student newspapers or the administration". This includes such features as a rumors ala Drudge column, and a calendar of hot drinking spots, concerts and photographs. The site also explores more serious issues such as a lack of decision making by students, a frank and open examination of drugs and alcohol on campus, and other topical and thought-provoking commentary. The official Claremont McKenna College web site, appropriately more staid, is a static marketing brochure that touts the virtues, policies, curricula and other aspects of the educational institution. Functional, but not particularly imaginative.
Citing trademark violations, the college administration sought to forbid claremontmckenna.com's use of the domain name, demanding that they sell the domain name to the college for $150.00 and threatening litigation for continued use. Enterprising students at claremontmckenna.com researched and found that Claremont McKenna College is in fact the only Claremont College that does not have a trademark on their name.
According to one of the site's creators, Dave Enrich, the administration's claim to the trademark "seemed a thinly-veiled attack at our content and our quasi-subversive role which is sometimes clear on the site." While the College's Code of Conduct does forbid the using the College name or seal except when authorized, Enrich pointed out inconstancies in its application. "The CMC's student senate, for instance, bears the CMC name, and is a wholly independent body from CMC, complete with different funding, different rules, and different leaders. But CMC endorses the goals and role of the senate, and so, quite justifiably, the administration didn't raise a stink."
Interestingly, on both the official Claremont McKenna College site and the claremontmckenna.com site, the college itself is frequently referred to as CMC. In a humorous twist of irony, the domain name CMC.COM contains a listing of all of the possible claimants to the domain name, including Computer-Mediated Communication Magazine - a publication whose mission is "to provide a forum for reporting on people, events, technology, and issues involved in the use and study of computer-mediated communication". CMC.COM has yet to update itself to include claremontmckenna.com, and CMC Magazine has yet to cover the computer-related dispute.
There is no likelihood of confusion presented by claremontmckenna.com's use of a commercial domain name that clearly states that it is not the official Claremont McKenna College web site, and provides a link to it. The very coverage regarding this issue and its disclaimer will make clear beyond question that its use of the name is not sponsored, certified, or approved by Claremont McKenna College. Protection for trademark rights under the Lanham Act is limited to protection against another's use of a designation to identify its business or in marketing its goods or services in a way that causes a likelihood of confusion. Such trademark rights do not override First Amendment rights. A comparison between the official Claremont McKenna site and claremontmckenna.com demonstrates that it is unlikely that a reasonable person, parent or student would confuse claremontmckenna.com with the official site of the College. Additionally, trademark law exists to prevent product confusion in the marketplace. Claremontmckenna.com is not in the business of, and does not generate revenue from, offering academic instruction or higher education courses.
In the context of brand recall and product recognition through the use of trademarks, there is yet another irony. One of the essential values of a trademark is the association - the product and the personality, which constitutes the brand. When one thinks of the word "College", automatic associations usually conjure up images of education, insight, analysis, study, books and learning. Indeed, Claremont McKenna College prides itself as a bastion of learning, encouraging its students to lead "thoughtful and productive" lives and "contribute to intellectual vitality and the understanding of public policy issues". The strong-arm tactics used by the Claremont McKenna administration in this matter and their willingness to suppress, in addition to First Amendment protections, entrepreneurial innovation suggests an improper use of the domain suffix .edu.
An educational institution should be a place where thought, discovery and initiative are applauded and rewarded, not punished. The construction of claremontmckenna.com does not in any way harm Claremont McKenna College, but in fact complements it. Will students looking to prepare themselves for "responsible leadership in business, government, and the professions " be attracted to an institution that treats its trademark as more important than the First Amendment and the innovation and ceativity of its students?
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