Trademark Trends and Brand Activity in Higher Education
Trademarks figure prominently in college and university brand formation efforts. Trademarks are intangible rights that allow institutions to define and protect aspects of their identities important to them as they engage in markets. This multiple-method study, grounded in legal and policy research, provides a first look at how institutions are harnessing the power of trademarks in service of brand initiatives in three understudied areas: promulgation of institutional slogans, engagement in contentious arbitration actions over Internet domain names, and the coining and adoption of new names by university offices of technology transfer.
Important recent works in the higher education literature concerned with organization, governance, and policy issues have turned attention to academic capitalism (Slaughter & Rhoades, 2004), privatization of the public university (Eckel & Morphew, 2009), the role of public goods and the concept of the university as public sphere (Marginson, 2011; Pusser, 2006, 2011), and overlaps between these concepts and modes of inquiry (Szelényi & Bresonis, 2014). Accumulation and enforcement of intellectual property (IP) rights by institutions often figure in these discussions to varying degrees. Direct analyses of IP in higher education have tended to focus on institutional treatment [End Page 33] of copyrights and patents (Lee, 2013; Olivas, 1992; Sun & Baez, 2009) and the market complexities and moral quandaries that face institutions active in these arenas (Rooksby, 2012, 2013).
Overlooked in these rich dialogues is any sustained focus on the role of IP—specifically, trademarks—in brand formation efforts by institutions of higher education. Indeed, the concept of brand itself is undertheorized as it relates to the privatization and academic capitalism trends that figure prominently in the literature, although popular outlets have addressed brands in higher education to a limited extent (Bartlett, 2007; Love, 2012; Moore, 2010; Quiggin, 2014; Straumsheim, 2014). In this study, we use brand to mean an explicit and implicit embodiment of institutional identity and aspirations that can be revealed or created through use of trademarks. In short, brand is the deep, underlying architecture of an institution that implicates reputation, quality, and values.
This article applies concepts of brand to trademark trends in higher education. While IP in higher education is a broad topic, involving distinct regimes within the rubric of IP, we focus our inquiries here on how institutions harness the power of trademarks—whether for their own sake as institutional slogans, as vehicles for wresting control of Internet domain names from others, or in furtherance of name change initiatives by university offices of technology transfer. We bring to light data concerning these efforts in addressing the following research questions: What does institutional rights-staking using trademarks reveal about university conceptions of brand? What insights do the creation and use of university-owned trademarks provide into university brand positioning, brand identity, and image consciousness?
We conclude that trademark trends in higher education reflect concerted efforts by institutions to harness the power of private rights in service of brand initiatives, most of which are directed toward presenting higher education as a vehicle for personal and societal wealth generation. Some of these efforts appear to represent evolutions in institutional missions that may run counter to the sector’s historic commitment to values such as free expression and market detachment. For all of the recent trademark trends studied in this article, our conclusion is that institutional image awareness and concern for brand formation and market identification offer a salient explanation for these phenomena. We believe the findings presented here provide meaningful insights into the institutional uses of trademarks in higher education, while also offering new understanding of how branding bears on higher education’s corporate and administrative functions. [End Page 34]
Trademarks, Brands, and Their Relationship
IP in higher education comes in different but sometimes overlapping formats (copyright, trademark, and patent) and is created by various and sometimes overlapping creators (students, faculty, and institutions). Trademarks comprise that species of IP that consists of distinctive words, images, or other devices used by market actors to identify their goods and services. Common examples of trademarks in higher education include institutional names, logos, seals, and athletic insignia, although even more conceptual items such as colors or domain names can serve source-identifying functions and therefore be deemed trademarks. Trademarks are eligible for national protection through application for registration with the United States Patent and Trademark Office. Trademark registrations represent strong rights that recognize the trademark owner’s use of the protected words or devices in commerce. However, trademark registrations do not confer outright ownership of the trademark on its holder (unlike patents and copyrights), but rather only presumptive freedom to use the protected words or devices in relation to specific goods or services. This feature of trademarks is why Delta Faucets, Delta Airlines, and Delta Dental Insurance can all co-exist in the marketplace: no company “owns” the word Delta, but each enjoys rights to use it in relation to a defined good or service offering.
Trademark registrations can last indefinitely, provided that their owners continue to use the protected mark and pay applicable renewal fees. The leading theory in support of trademark protection is that trademarks help lower consumer confusion and search costs (Rooksby, 2014), although others have suggested that trademarks increasingly perform a reward function for those who invest in trademark protection as a method of building brand (Desai, 2012).
Trademarks and brands are similar but not synonymous. A coherent brand strategy typically involves use of trademarks. Brands use trademarks “to provide information regarding source and quality and simultaneously to convey image components regarding power, value, and personality” (Desai, 2012, p. 988). In short, trademarks are manifestations of brands, but brands also do something more: they interact with consumers by enticing, forming, and impacting their behavior.
To develop an operational understanding of brand in higher education, the following sections describe key components of brand, including capital, equity, identity, and positioning. We explore brand as a stand-alone concept and then apply it specifically to its utility and function in higher education. [End Page 35]
Brand As Capital
Brands achieve recognition and loyalty by eliciting a reaction rooted in an ethereal combination of experience, meaning, and memory. Memory is important because people bring preconceived ideas and perceptions into every experience, which ultimately influence behavior (Khaneman & Tversky, 2000). A limited perspective of branding includes items like logos, color palettes, font types, flyers, direct mail pieces, radio ads, TV commercials, and other traditional marketing outlets. Goods and sellers are distinguished by symbols and names (Aaker, 1991). Branding, however, often is conceptualized as something much deeper—a moral compass, even, forcing institutions to make decisions based on internal and supposedly unchanging value systems. Branding is less about closing deals and making sales than it is about finding and affirming purpose. Institutional self-understanding and definition are key to the branding process.
Given our perspective on brand, a context-dependent question is the degree to which brand is created or revealed. This question is akin to the nature versus nurture debate in human behavior. Every institution has an internal architecture or DNA that represents its direction, purpose, and deepest collective values, which are made explicit to varying degrees. Concerted efforts to develop and enhance a brand often begin by forging a deep understanding of the institution and the way it is perceived, followed by deploying strategies to build upon characteristics deemed fundamental to the institution, as opposed to superficial attributes that may closely hew to isomorphic trends in the industry. For example, consider a private liberal arts college looking to an Ivy League university for direction in generating a new program or initiative. If the liberal arts college mimics the institutional behavior of the Ivy League institution in a way that does not build on its liberal arts brand, the mimicry will not only be isomorphic but also will generate asymmetry between institutional desires and abilities. Many examples of this phenomenon exist, including recruitment of international students, enhancing alumni giving, increasing selectivity standards, encouraging faculty to publish and pursue research grants, building elaborate facilities, and more superficial attempts to appear in ways that do not accurately represent the institution.
Keller (2003) identified that institutions build brand by imbuing attitudes and impressions with memorability and meaningfulness. The perception of the brand and its association with a service or product by various stakeholders is a key component in understanding the power of the representative symbol or name. Power is subsequently transferred to value based on the impressiveness, meaningfulness, and predictableness of the brand (Keller, 2003). Well known institutions can leverage their stored value to take risks in ways that could be detrimental to an institution without a powerful brand. For example, institutions with low brand recognition may find less traditional [End Page 36] (even more innovative) education delivery a difficult endeavor, such as in their attempts to open branch campuses, offer nontraditional degree programs, or initiate new professional degree programs. By contrast, institutions with high brand recognition may be more successful at those activities because of the quality of a traditional educational experience that built their brand, the value of which will transfer to the new diplomas. Value can be leveraged as either a form of capital (e.g., relying on and even trading in brand to support a low quality program that generates financial revenue) or stored equity (e.g., reputation).
Brand equity is the composition of brand value. A high-value brand is juxtaposed with a commodity. Branding moves beyond the details or benefits of a single product into the deeper emotional, psychological, and sociological territories of identity, beliefs, values, self-expression, and self-worth. Once a brand has built some equity, the brand constitutes stored value that can be reinvested as it continues to expand. For example, a large brand can afford to explore new products and markets by surviving on its equity that yields loyalty in its customers. The notion of brand equity is essential to the strategic management of well-branded institutions (Myers, 2003).
Aaker (1991) identified four dimensions of brand equity: brand loyalty, brand awareness, perceived quality, and brand associations. Each dimension provides an exchange of value between customers and institutions. Loyalty and awareness reduce marketing costs by creating a consistent pipeline of patrons who are attached to the differentiated components of a product that a recognizable brand offers as opposed to a generic or common offering. Consider the confidence that may be attached to driving a Mercedes as opposed to a Mazda. Differentiation is a key factor in the third feature, perceived quality, which yields positive feelings, or brand associations. Building an identity and strong identification among patrons is fundamental to building brand equity, as “consumers play an important role in shaping the brand” (Desai & Waller, 2014, p. 7).
Brand Identity and Positioning
An increase in the equity of a brand aids in building increased cultural identification, and vice versa. As a result, building a culture or brand is a matter of distinction, coherence, and consistency (Aaker & Joachimsthaler, 2000; Keller, 2003). Building a brand can include acquisition, enhancements, maintenance, and strategic associations in order to convey actual or aspirational identity.
When equity and identity are leveraged in new ways, the aspirational aspect of brand positioning takes center stage. New markets are targeted and explored as a result of a differentiated brand position. For example, [End Page 37] new audiences may be drawn to McDonald’s based on how it packages and presents its product offerings, yet the corporation’s vision of itself, as an innovative market leader, remains unchanged. Brand positioning therefore is not so much a change in values as it is a reflection of direction and intent. Identity is intricately linked to institutional culture and the trajectory of institutional mission (Toma, Dubrow, & Hartley, 2005). Exploring new markets and claiming dominance in new territory also requires capital, which makes brand equity, identity, and positioning concentrically operating principles that are mutually beneficial in building a loyal constituency.
Applications of Brand to Higher Education
Although the literature on brand is robust, few have applied the lens of brand to higher education. When higher education was evaluated through a brand lens, authors generally viewed the rise of branding in higher education as a response, in part, to globalization, with brand serving as a vehicle for institutions to forge memorable identities in increasingly competitive markets (Blanton, 2007; Pinar, Trapp, Girard, & Boyt, 2011; Whisman, 2009). While branding may be necessary in light of market forces, Whisman (2009) argued that branding is not an activity at which universities have succeeded. Part of the problem seems to be that—as Chapleo (2010) found studying university brands in the U.K.—defining what makes a university brand successful is inherently subjective.
The traditional instances when brand is deployed in higher education tend to revolve around admissions, athletics, and alumni relations (McAlexander & Koenig, 2010). Mostly absent from previous discussions of brand in higher education is any recognition of the role of trademarks in furthering or reflecting institutional brand efforts. King and Slaughter (2004) addressed the interplay between brands and trademarks in Slaughter and Rhoades’s book on academic capitalism, but the focus was on the formidable alliances between universities and athletic companies like Nike and Adidas and how these relationships undermine student independence from commercial interference. As they put it, “The students have dual institutional identities as educated persons and as loyal consumers of an increasing variety of intellectual property” (King & Slaughter, 2004, p. 277). The focus of their prescient work was less on the institution qua brand and more on the dynamics of how institutions have brought commercial brands into higher education as part of the growing coziness between universities and corporations.
Toma, Dubrow, and Hartley (2005) explored how institutions of higher education can clarify their image by leveraging and building brand equity. They found that understanding institutional culture fuels brand strategy and management in higher education, and that, [End Page 38]
Scholars addressing higher education have tended to examine the complex roles of culture in organizations without extending their analyses to describe how culture creates advantages in the external marketplace by encouraging strong identification and clear brand and the benefits that accompany them. Generating just such identification and image is the essence of external relations in higher education.(pp. 1–2)
If a brand is related to an institution’s norms, values, and beliefs, then brand equity is related to the value embedded in institutional culture. Put differently, the additional significance a consumer might place on a brand (additional meaning and value) as opposed to a commodity (a uniform good or service) is equity held by the brand. For example, comparing a historic brand like Harvard University to a newer institution like the University of Phoenix highlights how Aaker (1991) defined brand equity as the value (related to assets and liabilities) that comes from having a name or symbol that differentiates a product or a service. A brand like Harvard operates with a stored value that is not as pronounced in a newer brand like Phoenix. Harvard’s stored value creates a higher level of loyalty and affection in the patron. In the example of California’s higher education system, brands like UCLA and UC Berkeley have a distinct purpose and, therefore, audience as compared to the California State University system. Although both arms of the state’s higher education system have value and an individuated design, they carry different levels of recognition (similar to Lexus and Toyota—two automobile brands from the same company).
Brand equity allows colleges and universities to grow their brand and capital by building upon strong identification with their meaning and value. Institutional image must correspond with substance, including mission, vision, purpose, and foundations, and that image must be visible to those inside and outside of the institution. Toma et al. (2005) advocated that brand and culture “must connect with each other—and with the idea of mission—if a university or college is to derive equity from its image” (p. 5). Equity includes loyalty, awareness, and associations with quality, and there are wide-ranging levels of equity across a diversity of higher education institutions (Keller, 2003).
Brand activity includes a range of initiatives, from marketing management, to institutional awareness building, to cultural definition and exploration. In order to provide insight into how we understand and analyze the uses of trademarks in service of higher education brand activity, this section explores the competing orientations of university identities and activities. Ultimately, we use the lenses offered by brand and academic capitalism, informed by [End Page 39] our understanding of public goods and private goods in higher education, as a framework for analyzing the data we array in answering our research questions.
Branding in Mission, Revenue, and Academic Capitalism
The term mission has been used so broadly in non-profit higher education that it often miscommunicates purpose or means very little. Mission is critical, so critical that it often is a source of ongoing contest and redefinition. At the same time, no one would dispute the importance of money in higher education, even though revenue above expenses must by definition be invested back into the purpose of the institution. Certain activities in higher education are valuable precisely because they generate revenue; others are of transcendental importance no matter how much they cost (Weisbrod, Ballou, & Asch, 2008).
The so-called natural laws of higher education are as true today as when Bowen (1980) articulated them over 30 years ago. The laws recognize that most institutions have a dominant goal of seeking excellence, prestige, and influence. They pursue that goal by raising as much money as possible, then spending the money on seemingly fruitful educational activities. The final law reflects the cumulative net effect of this cycle: ever increasing expenditures in higher education.
University involvement in technology transfer presents a classic example of the tensions at play between mission and revenue in higher education (Geiger, 2004; Mowery, Nelson, Sampat, & Ziedonis, 2004). Focus on basic and applied research furthers universities’ purpose as centers of research. This same focus also can lead to realizing significant revenues through licensing patents generated from the research. Whether interest in mission or money should predominate in any given university activity, such as technology transfer, is a debated question, and one that different institutions answer differently. The idea that institutions simultaneously pursue two goods, mission and money, throughout their operations is pertinent to the notion of brand as embodying stored value that enables trading that value for financial capital. This interplay raises the question of how institutions pursue these two goods, which is worthy of further investigation—by institutions and researchers.
The reality is that mission activities and revenue activities are not always neatly separable. Invariably some factions within a university will view a certain activity as more mission-oriented than revenue-oriented, or vice versa, and support it or oppose it accordingly. Slaughter, Leslie, and Rhoades have tracked this tension with respect to the treatment of IP across countries (Slaughter & Leslie, 1997) and within institutions (Slaughter & Rhoades, 2004). In defining a theory of academic capitalism, these scholars argue that universities increasingly value knowledge privatization and profit-taking over what they deem the traditional knowledge/learning regime. A focus [End Page 40] on IP can reflect an institution’s commitment to the values embraced by academic capitalism.
Slaughter and Rhoades (2004) defined academic capitalism as higher education’s “pursuit of market and market-like activities to generate external revenues,” which also is “blurring the boundaries among markets, states and higher education” (p. 11). Another element of academic capitalism is an emerging view of knowledge and education as marketable goods, to be traded among individuals, institutions, and nations in the same manner as any other economic good. Academic capitalism, as an institutional habit or behavior, treats knowledge as a private good over which privileged faculty and corporations have claims before the public. Traditional public- and private-sector distinctions are eroded under this theory (Rhoten & Powell, 2007), enabling universities to engage the private sector marketplace directly and treat knowledge not as a free-flowing public good, but rather as a private commodity subject to containment, control, and monetization.
The term academic capitalism often conjures an assortment of images to those discussing it. Defining the two words separately highlights the tension within the term itself. Capitalism in common understanding refers to an economic system in which all or most of the means of production are privately owned and operated. Conversely, the academy connotes the cultural accumulation of knowledge that is generated and disseminated by professors, researchers, and scholars. The intentional paradox inherent in the term suggests a bleeding of boundaries and purposes, a reflection of institutional identities often built on serving a hybrid goal: seeking or deploying private goods in ways that some believe will inure to the public’s benefit. The construction of institutional brand is an ongoing process that can reflect the degree to which academic capitalist behavior, or more traditional academic norms, constitutes the institution’s predominant value system.
Public and Private Notions in University Brand
Higher education long has served as a transformational forum and space for public debate and contention (Habermas, 1962; Rhoads, 1997, 2011). Yet contest continues over the guiding constructs of higher education as a public sphere, reflecting deep tensions over the degree to which the industry’s benefits should accrue primarily to private individuals and corporations or to the public at large (Pusser, 2006, 2011).
Public benefits or goods stand in tension with academic capitalism and private-good orientations toward higher education. Universities accrue private-good benefits in individuals through conferring on them earned degrees that lead to enhanced earnings over their lifetimes. When universities facilitate revenue to corporations, this transfer also is a private good. However, when universities develop new knowledge, funded with public dollars, and distribute it widely, this activity is considered a public good (Collins, 2012). [End Page 41] Other public benefits to society include higher rates of civic engagement and healthy behaviors and lower rates of crime and other activities that encumber public services (McMahon, 2009).
With limited ability to measure public goods, the value and any consensus around higher education as a public good occurs in public perception, policy, and debate. Various conditions either enable or prevent the degree to which public good and goods emerge in higher education (Marginson, 2012). Weisbrod, Ballou, and Asch (2008) highlighted the difficulty of generating revenue for the support of unprofitable but socially valuable public goods and further noted that revenue-generating activities may run counter to a collective-good mission. For example, at the University of Minnesota, the exclusive license of a patent for an AIDS drug to a pharmaceutical company presented the conflict between the private-good goal of maximizing licensing-based revenue and the public-good objective of promoting wide dissemination and public health in economically disadvantaged countries with high levels of HIV-infected people in their populations (Lerner, 2001; Rooksby, 2012).
Academic capitalism and the tension it suggests between public and private goods in higher education provide a basis for understanding the function of trademarks in service of institutional brand identity and positioning. We use these theories to analyze the data collected to answer our research questions: What does institutional rights-staking using trademarks reveal about university conceptions of brand? What insights do the creation and use of university-owned trademarks provide into university brand positioning, brand identity, and image consciousness?
Our study borrowed tools from legal and policy research to explore trademark trends and brand-related strategies. Policy research refers to the process of conducting research and in-depth analysis of a fundamental social or legal phenomenon (Majchrzak, 1984). Analyzing the formation, implementation, and effects of policy within educational research often is complex, so our research was designed to analyze and address a confusing and entangled social reality (Anderson & Biddle, 1991). The social, legal, and policy-oriented behavior under exploration was that of trademarks and related rights-staking as evidence of either conscious or subconscious brand activity. Individual cases offered transferrable knowledge about institutional brand behavior, but our policy-oriented study took a broader approach at analyzing disparate sources of data logged in federal databases and a relevant news provider to derive findings about the social reality of trademark activity as it relates to brand. The foundation of policy and legal research was embedded in our sources of data and the ways in which we used them to [End Page 42] address a complex phenomenon. Elaboration of the details of our policy-oriented approach continues below in our description of the data sources and our collection methods.
For our purposes, three sources of data were harnessed to construct three original datasets in order to examine trademark trends and brand activity in higher education. The first source was a database of federal trademark registrations maintained by the United States Patent and Trademark Office. This database was used to locate every valid and subsisting federal trademark registration owned by a U.S. college or university through the end of the year 2012, the last full calendar year before data collection commenced. The resulting dataset comprised 10,265 confirmed records. We further refined these records to the 1,105 trademarks consisting of institutional slogans.1
The second source of data was two databases containing information about arbitration actions brought by trademark owners against registrants of Internet domain names alleged to infringe the rights of the trademark owner. The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a private ordering system that governs all registrations of commercial domain names. Two organizations—the World Intellectual Property Organization and the National Arbitration Forum—are the main providers of UDRP arbitration and maintain the two databases that were searched for every UDRP action brought by an American college or university, through the end of the year 2013, the last full calendar year before data collection commenced. The resulting dataset, comprising 233 confirmed records of UDRP actions (involving 373 distinct domain names), was subsequently analyzed.2
The third source of data consisted of periodic news stories and press releases conveyed to the academic technology transfer community through the industry’s leading news provider, Technology Transfer Central. These materials were searched in order to create a non-exhaustive list of technology transfer office (TTO) name changes over the period 2010 through 2013.3 We derived additional information about the located name changes by visiting the Web sites of the eight institutions included in the resulting dataset. [End Page 43]
All three datasets provided an opportunity to examine what institutional rights-staking using trademarks reveals about university conceptions of brand. The datasets also allowed us to consider how the creation and use of university-owned trademarks impact university brand positioning, brand identity, and image consciousness. In the findings section, we outline the relevant legal and policy issues followed by the institutional behavior trends based on available information in the datasets that we created. Drawing on our conceptual framework, we evaluated each dataset for evidence of traditional/missional brand constructions, as well as evidence of revenue-based brand constructions. Consequently, the analytic objective was to examine the policy environment portrayed in the original datasets in order to make observations about the nature of trademark trends and brand activity in higher education. Our objective was to broadly evaluate the datasets separately and together in order to consider the cumulative weight of the phenomena against the notions of traditional mission and revenue that we identified in our conceptual framework. For example, in the discussion, we present the findings through a lens described in our conceptual framework, with specific attention to academic capitalism and public/private notions of identity manifested through brand conceptions or intentions indicated by the trademark activity.
Our datasets were limited in that they are not representative. That is to say, many institutions are not active in using their trademarks to pursue brand strategies, and the datasets do not provide a statistical accounting of that inactivity. But the purpose of our study was not to track activity on an institution-by-institution level, but rather to provide a basis for examining the brand strategies that many institutions have chosen to implement. While the number of institutions that have turned to trademark to pursue slogans, domain names, or new TTO names may not be significant in a statistical sense, we believe that the datasets provide an important window into understanding brand activity in higher education and are appropriate given the study’s attention to policy and legal issues.
Institutional Slogan Trademarks
Through roughly the 1970s, universities were slow to seek formal trademark protection over any aspect of their identities. Institutions’ reluctance to protect even their names led some sportswear companies to attempt to capitalize on university names without paying licensing fees (Univ. of Pittsburgh v. Champion Products, Inc., 1982).
At risk of losing the ability to control their names and images, colleges and universities began to take hold of the concept of trademark protection [End Page 44] by the early 1980s. Institutions sought and achieved registration of their names, logos, and athletic insignia at the federal level, with the number of trademarks registered to colleges and universities nearly tripling from the 1980s through the 1990s (Rooksby, 2014). These registrations permitted institutions to license use of identifying insignia on all manner of merchandise, from traditional leisurewear and consumption items (e.g., t-shirts, hats, notebooks) to the more unusual or even provocative (e.g., coffins, fragrances, underwear). In the process of three decades, collegiate licensing went from a $100-million industry to a $4.6-billion industry.
By the early 2000s, however, higher education experienced a trademark saturation of sorts. With institutional names and key logos, seals, and athletic insignia protected by trademark, colleges and universities seemingly had protected the aspects of their intangible identities most important to them. Yet their applications for federal trademark registrations did not stop there. Instead, the 2000s into the early 2010s saw substantial growth in the number of institutions seeking protection over non-traditional items, outside of the realm of names, logos, and athletic insignia. For example, in 2009, Boise State University registered the color blue as used in relation to “entertainment services, namely the presentation of intercollegiate sporting events and sports exhibitions rendered through a stadium, and through the media of radio and television broadcasts and the global communications network” (U.S. Trademark Reg. No. 3,707,623). The university subsequently took a broad view of the protection afforded by its trademark, believing it provided the university with the right to prevent other colleges, universities, and even high schools from using any color other than green as the primary color on athletic playing fields, absent a license from Boise State (Gallagher, 2014). Other institutions during this time period sought in escalating numbers trademark registrations for their .EDU domain names, research initiatives, or individual schools, centers, or programs. Even products that resulted from faculty research were looked to and claimed for their trademark potential (Rooksby, 2014).
Awareness of these trends caused us to examine one species within the accretion of trademark rights in higher education: slogans for institutions or any of their components. The dataset consisted of 1,105 trademarked slogans, 94% of which were registered between the year 2000 and the end of 2012. Table 1 provides an illustrative selection of 41 different trademarked slogans from the dataset, listed by alphabetical order of their owners.
Domain Name Acquisition Efforts
When the Internet was in its early stages of development, its architects allocated to higher education its own domain-name extension, the .EDU. While the entity that has managed the extension has changed over the past 30 years, as have the rules for who may register domain names within the extension [End Page 45]
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(e.g., community colleges at one time were prevented from registering), the guiding premise of the extension remains unchanged: higher education is different than other industries, and that difference merits recognition in virtual space (Luker, 2001).
Conveying the authenticity and credibility of Web sites is of critical importance to online content providers. These concerns are of particular interest to institutions of higher education, which each are eligible to register only one.EDU domain name. Unlike commercially-available domain-name extensions (e.g., .COM, .ORG, and .NET), registration rules prohibit buying, selling, or trading .EDU domain names on the secondary market. In this regard, higher education’s domain name space is similar to that of the U.S. government and the U.S. military, each of which enjoys domain-name extensions (.GOV and.MIL, respectively) not otherwise available to the public.
Surveying the full array of domain names owned by colleges and universities outside of the .EDU space is not a simple undertaking, as registration records are not readily searchable, and institutions do not commonly divulge [End Page 47] their holdings. What is locatable are past efforts by colleges and universities to acquire, through an adversarial arbitration process that typically costs between $3,000 to $5,000 to complete, domain names from others who already own them. These arbitration actions require the complainant to have trademark rights in some aspect of the character string contained in the disputed domain name. Additionally, the owner of the domain name must have acted in bad faith in registering it or using it in order for the arbitration panel to have legal authority to transfer ownership of the domain name to the complainant (Rooksby, 2015). These data are meaningful in that—unlike domain names that colleges and universities themselves registered in commercial extensions—they represent concerted efforts by institutions to harness the power of trademarks to wrangle control of previously registered domain names from third parties. Without trademark rights, colleges and universities would have no claim to these contested online spaces.
Our dataset revealed that colleges and universities have challenged ownership of 373 non-.EDU domain names since the year 2000 through the end of 2013, winning ownership of the disputed domain names in over 91% of the cases. While many of these domain names are exact replicas of the university’s corporate name (e.g., <universityofarkansas.com>), 62% of the disputed domain names involve other character strings. Thirty illustrative examples from the dataset are provided in Table 2, listed by alphabetical order of their owners.
TTO Name Changes
The Bayh-Dole Act of 1980 created an incentive for universities to establish internal infrastructure to manage their patenting and licensing efforts. They accomplished this goal by inaugurating TTOs, classic “interstitial organizations” intended to mediate the university’s revenue-generation activities with industry (Slaughter & Rhoades, 2004, p. 23). Because dedicated attention to these activities was a new undertaking for most institutions and controversial to some faculty, many universities chose to separately incorporate their TTOs, staffing their boards with university personnel and friendly alumni (Matkin, 1990). Public institutions in particular found separate incorporation attractive, as state law often prevents governmental entities from owning equity in private enterprises, such as university spin-off companies.
The names of these entities quite commonly promoted their ties to academia, with the earliest and perhaps most prominent example being the Wisconsin Alumni Research Foundation (Mowery et al., 2004). Even for institutions that chose not to handle their technology transfer efforts through a separate organization, the titles of these offices typically were descriptive in nature, with words such as office, technology, transfer, and research quite commonly appearing in their names. [End Page 48]
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Beginning in the early 2000s, some institutions adopted new names that often excised these common words from their title, eschewing generic words in favor of branded terms. For example, in 2002, Arizona State University changed the name of its TTO to AzTe, a loose abbreviation of Arizona Science and Technology Enterprises, which the university’s foundation owns. In 2006, the University of New Mexico changed the name of its Science and Technology Corporation of the University of New Mexico to STC.UNM. At the University of Nebraska, the University Technology Development Corporation serves as its TTO, although in 2009 the university outsourced that entity’s main functions and market presence to two for-profit subsidiary companies, NUtech Ventures and UNeMed. Perhaps most visibly, Columbia University has gone through four names since its establishment in 1982: Office of Science and Technology Development (1982–1994), Columbia Innovation Enterprise (1994–2001), Science and Technology Ventures (2001–2009), and now, most recently, Columbia Technology Ventures (Mowery et al., 2004).
Anecdotal awareness of TTO name changes such as these caused us to want to locate evidence of any other TTO name changes, then analyze those name changes using our conceptual framework. Our dataset included news stories issued by the technology transfer industry’s news leader from 2010 through the end of 2013. While our dataset is not comprehensive of every TTO name change during the studied period—namely, TTO name changes not reported by Technology Transfer Central were not included—we believe that, despite its underinclusiveness, the dataset provides a reasonable avenue for initial examination of the phenomenon of interest. Table 3 identifies the TTO name changes reflected in our dataset and provides details about the name changes, listed alphabetically by university.
We have explored relevant history and data in three areas on the expanding boundary of market-like activity in higher education: institutional slogan trademarks, contentious domain name acquisition efforts, and TTO name changes. By casting the trends in these three distinct, yet related, areas through the lens of our conceptual framework, we sought answers to our guiding research questions: What does institutional rights-staking using trademarks reveal about university conceptions of brand? What insights do the creation and use of university-owned trademarks provide into university brand positioning, brand identity, and image consciousness?
Institutional Slogan Trademarks
Many of the trademarked slogans in Table 1 convey a sense of market identification and orientation. An underlying or even explicit current is that colleges and universities are part of the “real world,” not set apart from [End Page 50]
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it in any ideological or philosophical sense. Slogans such as REAL-WORLD THINKING WORLDWIDE REACH; KNOWLEDGE THAT WORKS; BRINGING KNOWLEDGE TO LIFE; WE’RE ALL BUSINESS; TURNING RESEARCH ON EDGE; and CREATING VALUE FOR THE WORLD embody this quality. These slogans tap into a market-oriented vision of higher education, where subjects related to business are touted and given primacy over subjects and disciplines more distant from the market, no matter the societal importance of those subjects or their traditional value to higher education.
Several of the slogans also explicitly incorporate a private-good orientation toward higher education’s purpose and values, suggesting that higher education exists to bestow private benefits in individuals, not to develop public goods that benefit all of society. Slogans such as CA$HING IN; BECOME EXCEPTIONAL; SUCCESSREADY; BECOME MORE; PURSUE YOUR PASSION; BUILDING A WINNING LEGACY; BIGGER OPPORTUNITIES. BIGGER REWARDS; THERE’S AN MBA FOR THAT; SOLUTIONS FOR YOUR LIFE; DISCOVER THIS PLACE. SHAPE YOUR WORLD; and IMAGINE POSSIBILITIES. REALIZE SUCCESS all convey a sense—through deploying a pithy, trademarked slogan—of the private gain that colleges and universities are positioning themselves to offer students.
In contrast, a few of the slogans suggest that higher education contributes to a greater public good, such as VALUES. SCHOLARSHIP. VISION; CHANGE IS CENTRAL; IN THE NATION’S SERVICE AND IN THE SERVICE OF ALL NATIONS; LEARN TO THINK; CREATE THE FUTURE; ENGAGING THE CULTURE, CHANGING THE WORLD; and EMPOWERING MINDS THROUGH SCIENCE. Ironically, by trademarking these slogans that call to mind the public good, colleges and universities effectively are asserting some form of ownership in them. That is to say, certain institutions have branded and claimed as their own the very broad-based, public-serving qualities, goals, and aspirations that some members of society may have for higher education as a whole.
Considered together, these trademarked slogans mirror popular conceptions of higher education as a vehicle for personal and social transformation, as an agent of collective and individual service, leadership, and fulfillment. Many of these qualities are not new values or aspirations for higher education, and some of the slogans seem to reflect a conscientious effort by institutional leadership to define and promote to targeted audiences historically valued aspects of their institutions’ identities. Other slogans seem to represent more recent recalibrations of institutional culture and identity in favor of neoliberal objectives and free-market ideologies. In either instance, by formulating and protecting these slogans, colleges and universities are harnessing the power of brand to position themselves in the market. No longer does institutional name alone convey adequate market meaning to potential consumers, for [End Page 52] elite and non-elite institutions alike. In fierce competition for students at home and abroad, colleges and universities choose to use trademarked slogans to better position themselves in the market—not only to paint a picture of who they are for internal constituents, but also to show the world how they would like to be seen.
Domain Name Acquisition Efforts
The setting aside of intangible online space for the exclusive use of higher education reflects the industry’s historic placement in the public sphere. Not traditionally styled as primarily a commercial concern, higher education’s exclusive use of the .EDU extension signifies adherence to a different set of values, goals, and operating premises. From the perspective of brand, the limited space allocation in the .EDU extension (and other closed extensions) is the envy of the commercial world, leading in part to efforts to create new domain-name extensions that allow brands to become more personal (e.g., <citi.bank> instead of <citibank.com>, or <office.microsoft> instead of <microsoftoffice.com>).
Companies often purchase the same domain names in a variety of extensions, not wanting to lose potential market space to a competitor that happens to get there first. Consumers of higher education, on the other hand, know to find colleges and universities in the .EDU extension. A user wishing to find Yale University is more apt to try <yale.edu> before she tries <yale.com>. Companies only wish they had the same ability to use domain names to further their brand equity. What URL should a potential purchaser of Yale brand locks enter into his Web browser? <yale.com> resolves to the homepage for the Yale forklift company; <yalelock.com> is used by the lock company.
In view of the protected space that was created for higher education in the online world, and the benefits this limited space offers to institutions from a brand perspective, the need for colleges and universities to own additional online space may not be immediately apparent. But of course, modern campuses perform many functions, some of which—such as institutional entertainment services, in the form of concerts, shows, and athletics—have an overriding commercial element to them. In view of these undertakings, some registration and use of domain names in the .COM or other commercial extensions by colleges and universities is inevitable. For example, a consumer wishing to purchase season football tickets for the University of Florida’s football team may find navigating to an athletics-targeted domain name, such as <gatorzone.com>, easier than navigating the main page for the University of Florida.
The examples of adversarial domain name acquisition efforts identified in Table 2 are illustrative for many reasons, including: (1) they reflect an expanding conception of brand held by many institutions, and (2) they demonstrate the lengths to which some institutions will go to protect their brands in the [End Page 53] online world. Whereas browsers for information about on-campus housing, the campus bookstore, curricular offerings, or affiliated museums or programs could all be channeled through the institution’s main .EDU Web site, many institutions deem it worth defining these features through their own standalone Web sites, and are willing to fight those who have gotten there first. In one sense, this trend is easily explained: as institutional brands have multiplied, so has the actual and perceived need to protect those brands in their virtual dimensions. But on the other hand, these efforts may reveal a growing problem: as institutional brands become more diffuse, brand equity and the value of the .EDU become diminished.
Also problematic is the commercial and noncommercial activity that gets swept into institutions’ growing conception of brand. Consider as an example the UDRP dispute involving <rg3bu.com>, brought by Baylor University. RG3 is a nickname for Robert Griffin, III, a professional football player who won the Heisman Trophy while playing for Baylor, from which he graduated in 2010. Nearly three years after his graduation, the university identified the domain name <rg3bu.com> as being owned by a third party who was using it to promote a fantasy football league. Claiming trademark rights in the letters BU—which, of course, could stand for any number of words in English or other languages, including Boston University, whose main domain name is <bu.edu>—as well as claiming some residual, identifying goodwill in the term RG3, the university pursued the domain name owner through the UDRP process, and won.
Enforcement activity of this sort raises questions about the intentions and capacities of colleges and universities to police their broad conceptions of brand in online space. Would the university have brought a UDRP action against a hypothetical owner of <rg4bu.com>, claiming the domain name was confusing? What about <robertgrifbu.com>, or a domain name that incorporated the name of another Baylor alumnus, albeit slightly less famous, like the ESPN SportsCenter personality Trey Wingo (e.g., <treywingobu.com>)?
Questions such as these reveal the precariousness of college and university engagement in this sphere. To expand the brand online beyond the .EDU is to immediately face difficult questions implicating the institution’s identity, its commercial aspirations, and how seriously it intends to defend—using assertive enforcement action—its investment in trademarks.
From the standpoint of traditional academic values, these forays also reflect institutional willingness to remove certain character strings—potentially valuable for purposes of comment, criticism, or parody—from the common pool of available domain names, out of concern for trademark protection and brand building. For example, domain names such as <cedarvillealumni.com>, <harvardbusiness.net>, and <baylorsucks.com> all conceivably could be used as legitimate online portals for third-party speech about the university. [End Page 54] To be sure, the respective universities’ rights-staking in these pieces of the online world will not cause all outlets for institutional criticism to vanish. Presumably <thebaptistuniversityinwacotexasisnogood.com> still is available to register, although a critic likely would prefer to use <baylorsucks.com>, given its rhetorical force and simplicity. Irrespective of Baylor, when colleges and universities contest ownership of domain names like these, they place themselves in a position of prizing their trademarks and image consciousness above their allegiance to traditional academic values such as free expression—including speech that may be unsponsored, impolitic, or even distasteful to administrators within the institution.
No doubt colleges and universities have self-images that can be damaged online, but not even for-profit companies have the money, time, or ability to control every message or space that could be used to criticize them, so many cease trying, mindful that in a free market not all negative speech will be interpreted as speech sponsored or condoned by the impugned. For some of the domain names in Table 2 whose ownership colleges and universities have contested, one wonders whether the relatively minimal price of ownership will be overshadowed in the long term by the cost to reputation and traditional academic values that some of these domain names represent.
TTO Name Changes
Evidence suggests that the model of the arms-length TTO that has served most institutions for 20 years or more is undergoing recalibration to reflect new institutional priorities embodied in brand. These new priorities include becoming entrepreneurially nimble, market reactive, market-facing institutions that are perched at the ready to engage in any manner of complex negotiations involving their IP (Thorp & Goldstein, 2010). Gone are the days of TTOs standing as their own silos, often physically located off campus, distant geographically and conceptually from the very faculty whose work makes their existence possible.
Original TTO names reflected their historic focus on patenting and transactions. For the 21st-Century TTO, however, patents and licensing no longer are the sole or even primary focus: ventures, commercialization, and strategic partnerships have taken center stage. A patent-focused TTO model reflects an increasingly dated, faculty-centric, “technology push” mode of opera-tion—in other words, the university exists to stockpile knowledge created at the instigation of its own researchers, as embodied in institution-owned patents. The new mode of TTO operation is allegiant to a socially-embedded, “technology pull” model—in other words, let the market dictate technological needs, which will lead to the formation of interwoven business-academe relationships that can quickly react to the pulls of the market. Stockpiles of patents—which may or may not correlate to market needs—are of little inherent attraction in the new regime. Indeed, a surplus of patents, of scant interest [End Page 55] to prospective licensees, recently led Pennsylvania State University to auction some of its holdings to the public, with mixed success (Blumenstyk, 2014).
The TTO name changes identified in Table 3 are ones not merely of brand positioning—most involve a recalibration of brand identity, as universities select TTO names that signal allegiance to new goals, values, and sectors. Each of these name changes represents not simply an effort to reposition, but rather an effort to redefine the very functions and construction of each institution’s technology transfer efforts. As a press release concerning the University of New Hampshire’s rebranding effort stated, the goals of the rebranding were to “take a more complete view of the university’s assets, create new business relationships, and accelerate commercialization of UNH’s intellectual property” (“UNH Innovation launches,” 2014). The rationales behind other TTO name changes are in accord. For example, the University of Virginia’s first “Chief Innovation Officer” described his institution’s name change this way: “In recent decades, university technology-transfer offices, including the U.Va. Patent Foundation, have been focused almost entirely on faculty research patents and resulting licensing revenue. … The launch and branding of U.Va. Innovation in 2011 was a move away from the traditional focus on patents to emphasize a new, broader view of value, to better weave innovation into the fabric of the University” (Cannon, 2014).
Returning to our conceptual framework, central to these changes is identification with the market. Many of the new TTO names prominently tout ventures—a classic market conceit that connotes entrepreneurialism and risk-taking—while downplaying or removing the words science, transfer, or office from the name, as these academic words tend to evoke an earlier conception of academic technology transfer. In short, most of these TTO name changes are not reflective of minor image tweaks, designed only to portray the university to a new audience. Instead, they reflect a conscientious effort to burnish in the business market an entirely new image of the university’s mission and function. No longer styled as disinterested purveyors of knowledge, these newly-branded TTOs sport names that call to mind a university actively engaged in entrepreneurial risk-taking and open to the possibility of science and discovery as vehicles for private wealth generation.
The trademark function of these new names also cannot be overlooked. Similar to AzTe and STC.UNM, both UNHInnovation and C4C (which stands for Center for Commercialization) are coined terms, which imbue them immediately with trademark meaning. For example, C4C conveys no meaning other than a trademark meaning; the coined term does not exist in any dictionary. This type of mark receives strong protection under trademark law. Even for those new TTO names that are not coined terms, each at the very least suggests, rather than merely describes, the services that these segments of higher education offer. That is to say, the most often used [End Page 56] words in all of these TTO name changes—technology and ventures—require some mental thought in order to divine their precise meaning in relation to university service offerings, unlike the more descriptive or generic phrasing of their common predecessor monikers, office of technology transfer and technology transfer office.
This seemingly minor semantic difference signals what we see as an important shift in the history of university technology transfer. These name changes demonstrate that many university administrators no longer style TTOs as predominantly performing inward-looking, faculty-service functions. Instead, the new names reflect how the TTOs have fully embraced the mores of the commercial market, right down to renaming themselves in ways that might build brand equity and lead to market differentiation.
Universities for some time have appended the names of donors or sponsors to certain divisions of the institution, from endowed chairs named for pharmaceutical companies, to corporate-sponsored football stadiums or classrooms, to entire schools renamed for an individual donor. The TTO name changes identified in our research are different, however, in that they reflect a conscious decision to brand, not a decision to appease or to reward. These voluntary changes of TTO names are not part of a tradition of honoring philanthropy through naming rights. Instead, they represent affirmative attempts by universities to attract the private market by looking and acting like the private market.
The notion that any territory, boundary, or frontier is both claimable and at the service of private good is a profoundly neoliberal idea. The neoliberal critique frames aggressive attempts to stake rights and claims as an assault on notions of publicly held territory for the public good. As we have described in this article, colleges and universities are turning to trademarks as vehicles for staking claim to institutional slogans, Internet domain names outside of the .EDU extension, and TTO names that sound more like businesses than they do offices within a university. Although the three components of our exploration are not necessarily at the center of a heated debate about public versus private goods, they are relatively new undertakings in higher education that resemble market-like activity in pursuit of greater brand presence. Any college or university operating independently in pursuit of a new slogan, domain name, or TTO name may not be perceived as an aggressive brand builder or market player, but the combined influence of many institutions operating aggressively or assertively in multiple brand spaces reflects a growing trend, and one we find concerning.
In response to our research questions, we contribute evidence that suggests that the conception of brand in higher education is evolving in the [End Page 57] direction of the market. The growth of the research university for practical arts and sciences (i.e., land-grant institutions) was an evolution in mission for American higher education. The same institutions continued to evolve through developing patents and capitalizing their knowledge production systems that originally were designed for the public’s benefit. Regarding the data examined here involving institutional slogan trademarks, Internet domain names, and new TTO names, we see these initiatives as a further evolution in mission, one which entails institutions modeling corporate-like behavior that often is rife with image consciousness and marked by quick intercession in instances of perceived rights violations. In terms of brand image, these activities look quite different from ivory-laced walls and circles of students studying on manicured green lawns. Trademarks, more so than common words, can facilitate their owners being perceived as aggressive innovators and market actors, and many institutions of higher education seem to be turning to them in part to capture or reflect those commercial qualities.
As colleges and universities continue to leverage the power of trademarks to position themselves according to the norms of the market and take expansionist oriented rights-staking steps to grow, crises of mission may occur. While mission often yields to money in higher education, in the case of the three trends under examination, one must question at what cost. Although higher education’s mission long has entailed harnessing intellectual capacity and output, we worry that claiming and adjudicating that output for primarily private purposes may bring new definable losses: the involvement of faculty in shared governance; the ability of the institution to remain disinterested in its pursuit of knowledge production; and ultimately, the trust of the public. From a brand perspective, these changes may mean that institutional brands become more diffuse as they transition to reflect new values, goals, and priorities. In short, as institutions use trademarks to position their brands more closely to the market, the value of those brands themselves may suffer.
We view the ascendancy of brand as an important yet largely overlooked site of contest in higher education’s move to the market. We also see the ascendance of brand as establishing an image/market feedback loop. As sensitivity to brand creates brand opportunity, brands come to reflect markets. In short, institutional image consciousness drives the creation and enforcement of brands, which serve as commercial tools of definition, signaling, and mediation between public and private. Trademarks are central to this process. In future work, we aim to understand the effects of these trends on the institutional level, as well as provide insight into administrative decision-making in matters of trademark and brand. [End Page 58]
Jacob H. Rooksby, J.D., Ph.D., is Assistant Professor of Law at Duquesne University. His research interests include intellectual property and higher education law. Johns Hopkins University Press recently published his book, The Branding of the American Mind: How Universities Capture, Manage, and Monetize Intellectual Property and Why It Matters. Rooksby is co-author of the next edition of The Law of Higher Education, with Kaplin, Lee, and Hutchens. Contact the author at: firstname.lastname@example.org or by phone: (412) 396-6185.
Christopher S. Collins, Ph.D. is Assistant Professor of Higher Education at Azusa Pacific University. His research interests include the role of higher education related to poverty reduction, knowledge extension, public good, and social rates of return. Recent publications include, “University Land-Grant Extension and Resistance to Inclusive Epistemologies” in the the Journal of Higher Education (2016), and an edited volume, University-community engagement in the Asia Pacific: Public benefits beyond individual degrees (in press with Palgrave Macmillan).
1. For purposes of data refinement, slogan was defined as a phrase serving as the subject of the trademark registration. Records removed from the dataset consisted of institutional names, athletic team names, logos, and trademarks for institutional programs or products that did not contain a slogan.
2. The databases contain records of arbitration actions, which often involve more than one domain name because the respondent in the arbitration action has registered several similar domain names that the complainant alleges violates its rights. For example, in 2011, Yale University brought one arbitration action against a registrant who owned both <yale-explore.com> and <yale-explore.org>.
3. We chose this four-year window out of convenience: 2010 was the first full year of the news provider’s existence, and 2013 corresponded to the end date of data in the UDRP dataset.