Higher education in the United States has been pushed steadily towards the business model. One obvious example of this is the brand merchandizing of schools. In 2011, schools licensed their names and logos for a total of $4.6 billion. Inspired by this sort of brand-based profits, schools started trademarking their slogans. Impressively, there are over 10,000 trademarked slogans.
These slogans include “project safety” (University of Texas), “ready to be heard” (Chatham University), “power” (University of North Dakota), “rise above” (University of the Rockies), “students with diabetes” (University of South Florida), “student life” (Washington University in St. Louis) and “resolve” (Lehigh University). Those not familiar with trademark law might be surprised by some of these examples. After all, “student life” seems to be such a common phrase on campuses that it would be insane for a school to be allowed to trademark it. But, one should never let sanity be one’s guide when considering how the law works.
While the rabid trademarking undertaken by schools might be seen as odd but harmless, the main purpose of a trademark is so that the owner enjoys an exclusive right to what is trademarked and can sue others for using it. This is, of course, limited to certain contexts. So, for example, if I write about student life at Florida A&M University in a blog, Washington University would (I hope) not be able to sue me. However, in circumstances in which the trademark protection applies, then lawsuits are possible (and likely). For example, Eastern Carolina University sued Cisco Systems because of Cisco’s use of the phrase “tomorrow begins here.”
One practical and moral concern about universities’ enthusiasm for trademarking is that it further pushes higher education into the realm of business. One foundation for this concern is that universities should be focused on education rather than being focused on business—after all, an institution that does not focus on its core mission tends to do worse at that mission. This would also be morally problematic, assuming that schools should (morally) focus on education.
An easy and obvious reply is that a university can wear many hats: educator, business, “professional in all but name” sport franchise and so on provided that each function is run properly and not operated at the expense of the core mission. Naturally, it could be added that the core mission of the modern university is not education, but business—branding, marketing and making money.
Another reply is that the trademarks protect the university brand and also allow them to make money by merchandizing their slogans and suing people for trademark violations. This money could then be used to support the core mission of the school.
There is, naturally enough, the worry that universities should not be focusing on branding and suing. While this can make them money, it is not what a university should be doing—which takes the conversation back to the questions of the core mission of universities as well as the question about whether schools can wear many hats without becoming jacks of all trades.
A second legal and moral concern is the impact such trademarks have on free speech. On the one hand, United States law is fairly clear about trademarks and the 1st Amendment. The gist is that noncommercial usage is protected by the 1st Amendment and this allows such things as using trademarked material in protests or criticism. So, for example, the 1st Amendment allows me to include the above slogans in this essay. Not surprisingly, commercial usage is subject to the trademark law. So, for example, I could not use the phrase “the power of independent thinking” as a slogan for my blog since that belongs to Wilkes University. In general, this seems reasonable. After all, if I created and trademarked a branding slogan for my blog, then I would certainly not want other people making use of my trademarked slogan. But, of course, I would be fine with people using the slogan when criticizing my blog—that would be acceptable use under freedom of expression.
On the other hand, trademark holders do endeavor to exploit their trademarks and people’s ignorance of the law to their advantage. For example, threats made involving claims of alleged trademark violations are sometimes used as a means of censorship and silencing critics.
The obvious reply is that this is not a problem with trademarks as such. It is, rather, a problem with people misusing the law. There is, of course, the legitimate concern that the interpretation of the law will change and that trademark protection will be allowed to encroach into the freedom of expression.
What might be a somewhat abstract point of concern is the idea that what seem to be stock phrases such as “the first year experience” (owned by University of South Carolina) can be trademarked and thus owned. This diminishes the public property that is language and privatizes it in favor of those with the resources to take over tracts of linguistic space. While the law currently still allows non-commercial use, this also limits the language other schools and businesses can legally use. It also requires that they research all the trademarks before using common phrases if they wish to avoid a lawsuit from a trademark holder.
The obvious counter, which I mentioned above, is that trademarks have a legitimate function. The obvious response is that there is still a reasonable concern about essentially allowing private ownership over language and thus restricting freedom of expression. There is a need to balance the legitimate need to own branding slogans with the legitimate need to allow the use of stock and common phrases in commercial situations. The challenge is to determine the boundary between the two and where a specific phrase or slogan falls.