Is Clinton's Morgan School Infringing on UConn's Trademark?

I was only going to write one post today but since I have taken many intellectual property classes in law school this article about UConn asking Clinton’s Morgan School to change the husky image they use piqued my interest. The article does a somewhat decent job of laying out the issues and notes that the university is not interested in litigating the matter. However I think the article does a poor job of laying out the law and explaining it to the general public.

The first issue is that the article discusses trademark infringement but a quote from Michael Enright refers to copyright infringement. I think that this quote confuses two separate issues for the readers. Trademark is protection granted to a distinctive mark for the purposes of identifying the source of goods used in commerce. The purpose of trademark is to prevent consumer confusion in the marketplace (i.e. we do not want people seeing the dog from Morgan School on a hat and have people think it’s a UConn hat or vice-versa). Copyright is protection granted to an author of an original work for a limited period of time so they can profit from their creative endeavor. Copyright is why you cannot legally share music online.

The test for copyright consists of two parts: access to the original work and substantial similarity to that work. The first component is key with regards to copyright because the article notes:

The gymnasium Husky was not copied from UConn’s logo, and does not resemble it, but was drawn by a student many years ago, Cross said, possibly prior to the UConn trademark.

If it turns out the gym logo was created first, then that certainly could not be a copyright infringement case because it would not meet the access prong of the test.

The second issue that is murkier comes when we assess the impact of the potential of the Morgan School logo being first in time to UConn’s trademark. Under trademark law the fact that Morgan School used the logo first entitles them to continue to use it as a senior user of the mark. They are not required to register the mark with the USPTO to have a valid mark; they acquire trademark rights to their mark in common law but only in the geographic area they use it. Therefore if Morgan School was first in time, UConn can ask them to stop using the mark, but they are not likely to succeed if they decided to take it to court. For a more technical discussion on this aspect of trademark law you can read this article.

The article does do a good job of pointing out that trademark owners are required to police their marks otherwise they risk losing the protection of it. Unfortunately they decided to include a quote from First Selectman William Fritz at the end, decrying the fact that UConn was pursuing the matter. Fritz did not seem to understand the obligations of the university under trademark law and his statement cast UConn in a bad light. The quote added little to the article other than encouraging the readers to be angry. And angry they are based on the comments at the end of the article.

Disclaimer: I am not an attorney (yet) and this blog post is merely my own analysis of the situation based on the facts provided and some knowledge from my classes. It does not constitute legal advice.

Heroes that Disappoint

I did not play sports in high school. Running did not seem fun and most of the ball sports were difficult for me since I cannot see in three-dimensions. Since I do enjoy being outside I decided to take up cycling and with it I followed the Tour de France and adopted Lance Armstrong as my sports hero. Today Lance Armstrong was stripped of his seven Tour de France titles because of overwhelming evidence that he participated in and propagated an elaborate doping scheme. It turns out that Armstrong was less of an athlete and more of a magician.

With all the publicity and accusations leading up to Armstrong’s punishment it is hard to say that it was a crushing surprise. The evidence always seemed to be present and it was merely a matter of when and not if he would be caught. Doping has been rampant throughout cycling and has also permeated other sports like baseball. Even Linda McMahon’s WWE, which is a scripted sport, has been clouded with steroid use. It seems that many of the sports we watch today are less real than we think and its up to us to decide whether we want to acknowledge this.

Unfortunately I think at the upper echelons of any sport there will always be a race between performance enhancement and the tests that detect them. The appeal of the steroids seems too great to resist, especially for people whose careers depend on their athletic performance. However I think the Freakonomics bloggers had a good idea on how to help fight it: preserving blood samples to test as technology improves. This obviously won’t eliminate the doping but it will increase the risk of being detected and maybe sports teams can structure contracts in a way that the consequences for doping becomes too risky for the athletes.

Ultimately it is sad that the integrity of professional sports has been compromised by this culture of winning at all costs. Lance Armstrong was successful for all the wrong reasons and he deserves the punishments he is getting. However punishing Armstrong will not fix the culture of doping and steroids in professional sports. Cultures must be set by leaders and an assurance within the peer group that nobody else is cheating. If athletes have no assurance that their peers will be punished for bad behavior, then they too will misbehave. I do not know if cycling will be cleaned up, but I do have hope that it could happen.

Ira Glass on The Art of Storytelling

Ira Glass is the host of the show This American Life on NPR. He is renowned for his storytelling and his advice can be applied to many fields beyond radio or video. A quote in the third video applies to almost anything, and has echoes of Malcolm Gladwell and his book Outliers: “the most important thing you can do is to do a large volume of work; it’s only through doing that large volume of work that you’re going to close that gap and your work will be as good as your ambitions.”

With all my election related activity and having things on my plate at work I have not been able to blog as much recently. On this blog I have no deadlines. I think the blogging is made tougher by the fact that my day job and my extracurriculars both involve lots of confidential information that I am not allowed to share. However this does not mean that these stories are dead. In politics and many other areas of business the most interesting and important insights are not written down; they are stored in people’s heads and kept as oral history. Often times you can learn more about your town or an industry by sitting down with someone who has been involved for a long time and just getting them to share their stories than you would from any textbook or website.

So watch the videos below, and maybe share some of your tips or even a story about storytelling in the comments.

Senate and Vice-Presidential Debate Post-Mortem

Tonight Connecticut was treated to two debates. I think debates are important events because it gives the media the opportunity to ask questions to the candidates in an unscripted environment and the viewers can see the contrasts between them. However it is important for the media to spend effort preparing for the debate and set the agenda in a way that viewers can learn and gain new insights into the candidates. Candidates have the opposite goal: they want to make sure to reinforce their core message no matter what question is asked.

In the debate between Chris Murphy and Linda McMahon we were treated to what was mostly a re-run of the debate they had on Sunday. The moderators failed to tease out many (if any) novel issues for discussion between the candidates. Instead they covered the usual suspects. Linda McMahon and Chris Murphy both did a good job of sticking to their scripts, although for Linda McMahon this meant not answering many of the questions that were asked of her. In contrast Chris Murphy managed to directly answer many of the questions while also pivoting to his campaign themes. I am in fact biased, but Chris Murphy again looked more prepared and came out the clear winner here. However I was disappointed in the questions asked by the media panel. Hopefully the next one turns out better.

I was going to also include some analysis of the Joe Biden v. Paul Ryan debate but I do not think there is much I can contribute beyond what was said. The debate was extremely substantive, the candidates were animated, and the moderator did a great job. Hopefully the Connecticut media was watching because they had a good model to emulate.

What debate questions would you ask the candidates and why? How can we have better debates that better inform our electorate?

Why is the campaigning so negative?

I think that was the number one question asked when phone banking today. People claim they do not like negative campaigning. I know I am not a fan of it. However for better or worse, it works. Wikipedia lays out why in detail, as does this piece by Mark Penn in Politico. One point of particular interest to political parties is that the negative campaigning tends to suppress turnout from unaffiliated voters. Therefore if you are a partisan and cannot garner popular support then negative campaigning is probably especially helpful.

Intuitively, I think that negative campaigning is also a long-term negative for both political parties. The goals of candidates and political parties are not completely aligned in this respect. Political parties should aim to be more inclusive. The greater number of people that participate in a party the greater its influence. Candidates do not have this incentive. However the candidates have most of the money, or control it, other than the PACs. Therefore political parties take a backseat to the goals and whims of the various campaigns. Rounding up the campaigns and getting them coordinated requires a skilled chairperson or leader, something that they generally lack. This creates a negative feedback loop where people do not want to be involved in politics because it is negative, but politics becomes negative because people are not involved.

On a micro level people can lead by example by becoming involved and not using negative campaign tactics in their own campaigns. This will not fix the problem of negative campaigning and the lure of its efficacy in statewide or national campaigns, but I believe it can blunt it. Also it is important to point out that as candidates who do not use negative campaigning gain experience and move into higher positions, they will be more reluctant to go negative. The other solution would be for unaffiliated voters to cease making voting decisions based on negative advertising. If the efficacy of the advertising is eliminated, then the campaigns will not use it.

Some might protest that placing the burden on the voters is unfair or unproductive. However it is important to point out that the only people in power are the ones that the voters are voting for. By voting for candidates that engage in negative advertising you are actually driving the candidates who do not use it out of the process. The people that don’t use negative advertising cannot control the fact that they lose by doing so, and that this loss includes a loss of political capital that can be used to stop negative campaigning.

Others suggest that campaigning be more regulated. There is already a large body of law surrounding campaigning but the First Amendment restricts the ability of the government to regulate the content of political advertisements. This can be worked around by finding other hacks, such as setting up a voluntary public financing program similar to the one we have in Connecticut and include restrictions on negative campaigning as part of the strings we attach. However I do not think these programs are likely to succeed if we do not fix the fact that negative campaigning works in the first place.

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This work by Matt Zagaja is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.