THE Ohio State University Loses Its Trademark Application For 'THE'

from the THE-end dept

Over the past several weeks, we have been discussing a ridiculous trademark application filed by the Ohio State University for the word "the." This entire episode has been a painful reminder of the fallout of the permission culture that has risen up out of strict IP enforcement and an overly-permissive USPTO. The idea that so common a word could be locked up by a public university for any market designation is, ahem, patently absurd. So absurd, in fact, that even OSU alumnus and college football commentator Kirk Herbstreit thought the whole thing was silly.

Still, given the Trademark Office's history of approving far too many absurd trademarks, there were still some holding their breaths awaiting its decision on the application. For now, at least, the USPTO has rejected OSU's application, though not quite as forcefully as it should have.

The USPTO's document lists says it was refused because "the applied-for mark as used on the specimen of record is merely a decorative or ornamental feature of applicant's clothing and, thus, does not function as a trademark to indicate the source of applicant's clothing and to identify and distinguish applicant's clothing from others."

Basically this ruling says is that the word wanting to be trademarked cannot just be on the apparel, but has to be part of the marketing and must be on the tag or label as well. Ohio State is not using the trademark properly according to the USPTO, and could reapply if they do begin to label their clothing in a way that goes along with the trademark guidelines.

The decision itself leaves the door open for OSU when it probably shouldn't. Essentially, the USPTO is noting the common word in question only in passing, instead focusing on how OSU is trying to use that word on apparel. Basically, the Trademark Office is saying that the manner in which OSU's application says it's going to use the word "the" isn't distinctive or source-identifying, but says perhaps OSU could prove it actually is in the future.

In appropriate circumstances, applicant may overcome this refusal by satisfying one of the following options:

(1)        Submit a different specimen (a verified “substitute” specimen) that was in actual use in commerce at least as early as the filing date of the application (or prior to the filing of an amendment to allege use) and that shows proper trademark use for the identified goods in International Class 25.  Examples of acceptable specimens that show non-ornamental use on clothing include hang tags and labels used inside a garment.

(2)        Amend to the Supplemental Register, which is a second trademark register for marks not yet eligible for registration on the Principal Register, but which may become capable over time of functioning as source indicators.

(3)        Claim acquired distinctiveness under Trademark Act Section 2(f) by submitting evidence that the applied-for mark has become distinctive of applicant’s goods; that is, proof that applicant’s extensive use and promotion of the mark allowed consumers now directly to associate the mark with applicant as the source of the goods.

(4)        Submit evidence that the applied-for mark is an indicator of secondary source; that is, proof that the mark is already recognized as a source indicator for other goods or services that applicant sells/offers.    

(5)        Amend the filing basis to intent to use under Section 1(b).  This option will later necessitate additional fee(s) and filing requirements.

It's unclear how much of this is pure boilerplate as opposed to specific guidance by the USPTO for this specific application. I would hope it's the former, because I can't begin to imagine how OSU is going to overcome the refusal on any of those counts, given that we're talking about the god damned word "the." The only reason for any of this nonsense is that alumni football players have tended to go on NFL broadcasts and introduce themselves with an emphasis on the word "the." That's literally it. How such practice could make the word "the" source identifying is pure mystery.

Given the derision and blowback, one would hope the Ohio State University would now just go away and stop all of this.

Filed Under: colleges, the, trademark
Companies: ohio state

Advocacy Groups, Lawyers Want Dept. Of Education To Enforce Campus Yik Yak Bans, Encourage First Amendment Violations

from the 'legal-experts' dept

Here comes another attack on free speech, using college campuses as the delivery vehicle.

A large group of 72 women’s and civil rights groups have asked for the Department of Education’s help in protecting students and faculty from abusive speech and threats made on university campuses via the Yik Yak app. In a letter published this week, the organizations seek a formal "guidance" to colleges from the Department’s Office of Civil Rights (OCR) and hope to specifically put such online threats under the umbrella of federal gender and racial equality legislation.

The group wants universities to ban use of Yik Yak and other anonymous social media platforms. The angle they're taking involves federal statutes (Title VI and Title IX) that forbid universities from engaging in racial or sexual discrimination. Universities have often interpreted this code to mean that they're obligated to prevent students from harassing each other while on campus. While there is some obligation inherent in these statutes, it does not go as far as to compel schools to regulate off-campus actions, which some of these communications are.

Unfortunately, the Department of Education has muddied the legal waters in regards to these statutes, which has led many colleges to believe their federal funding could be threatened if they don't immediately overreact to every harassment allegation. It's only because of this muddying that these groups have any leverage whatsoever.

These groups want campuses to actively regulate off-campus speech and they're using Yik Yak as their test case. Yik Yak has received lots of bad press for posts made on its platform. Yik Yak doesn't compose the posts or perform any sort of curation. But to these groups -- as well as plenty of misguided school administrators -- Yik Yak is the problem, rather than the racists and sexists who use it.

Because the app gives users anonymity, the most visible target is the app itself. And because many people want speech they don't like to be buried, all sorts of stupid things are being said by people who should know better -- namely, actual practicing lawyers.

The Department of Education last issued such guidance in 2010, prior to the birth of Yik Yak and other similar apps. "Harassing conduct may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the Internet; or other conduct that may be physically threatening, harmful, or humiliating," the Department of Education stated.

"Some universities have taken the position have that this isn't on campus, so we don't have to deal with it," said Alison Asarnow, an attorney who specializes in sexual harassment cases. "We need to impress on colleges and universities that yes, this is your responsibility; that's what we meant."

Note that Asarnow deigns to speak for the Department of Education, an entity she does not represent nor is employed by. She has determined on her own that the statutes, along with the DOE's guidance, means something it doesn't actually say. The guidance instructs universities to be proactive when it comes to "hostile environments" created by harassment, but it does not instruct schools to punish speech or regulate off-campus activities. If universities buy into this mindset (and many have), they'll be spending their federal funding on defending themselves against First Amendment lawsuits. Schools can't regulate off-campus speech and are under no legal obligation to do so, no matter what this attorney thinks.

But that's not the only clueless statement being uttered by a practicing attorney. Over at Simple Justice, Scott Greenfield quotes Debra S. Katz, another lawyer involved in the fight to bring down Yik Yak -- one that has already duped the DOE into investigating a university for "failing to investigate online harassment" via the app.

At Wednesday’s news conference, Ms. Katz said she hoped to persuade Yik Yak to be more forthcoming in revealing the identities of users who harass online, and to stop refusing to hand over users’ names to people outside law enforcement unless ordered to do so by a court.

If you can get Yik Yak to do you favors, great. But don't pretend the platform has any sort of obligation to do so. It's incredibly stupid for Katz to complain that Yik Yak will only hand over personally-identifiable information in response to the correct legal paperwork. That's how things are supposed to work. It's not a sign the system has failed. It's the system working the way it should. No social media platform should be handing out user info to whoever asks for it. This information should only be given to authorities providing court orders or warrants. It boggles the mind that a lawyer would believe it should be otherwise.

Katz isn't done, though.

Observing that the company has been quick to provide information identifying people who have threatened criminal acts such as shootings, she said it should also feel obliged to identify the violators of federal laws barring educational institutions from discriminating based on sex or race.

This is even stupider than the first half of her statement. The people making these stupid racist/sexist statements aren't violating federal law, not even if they attend universities that fall under these statutes. If the comments move toward stalking or harassment, the legal system provides remedies for victims. These remedies generate the paperwork needed to obtain user info from Yik Yak. Again, this is how the system is supposed to work. Yik Yak is not "obliged" to identify anyone without a warrant or court order. Katz wants Yik Yak to start coughing up information whenever a university -- or one of its students -- demands it, when neither Yik Yak nor the university are obligated by federal law to take any action whatsoever.

What these groups want the DOE to do is step in and force schools to participate in violating students' First Amendment rights. Of course, these legitimate First Amendment concerns are portrayed by the advocacy groups as spurious at best.

Many schools have shirked these legal obligations by citing vague First Amendment concerns. At the University of Mary Washington, for example, administrators and lawyers for the University repeatedly stated that, as a public university, they were bound by the First Amendment to permit threatening posts on Yik Yak and could not disable the application. The school’s Title IX coordinator also sent an email to students informing them that the university has “no recourse for such cyber bullying” and instructed students to file a report with Yik Yak if they became the subject of threatening or abusive comments on the social media application.

[...]

Likewise, administrators at Clemson University and Kenyon College refused to ban Yik Yak out of fear it would infringe on students’ freedom of speech.

[...]

Nonetheless, academic institutions, many mistakenly citing the First Amendment, have not been quick to take action to properly investigate anonymous online harassment and cyber-violence. Many schools have taken the stance that they have no recourse for students experiencing harassment on these sites. Students are therefore left to fend for themselves against vicious threats and harassment simply because it is conducted on a new platform.

The groups shrug off valid First Amendment concerns and follow it up by accusing schools who present harassed students with valid options (report harassers to the social media platform and/or local authorities) as somehow shirking their obligations to their students.

What these groups are demanding is a new reality where social media platforms kick loose identifiable information to whoever asks for it, for whatever reason, with the federal government's blessing. They don't seem to know how to make Yik Yak compliant with their wishes (other than taking every opportunity to portray it as a blight on humanity) but they do know how to motivate the schools. First, they threaten the carrot (federal funding tied to Title IV/IX compliance). Then they grab the stick.

Ms. Katz said she hoped the Office for Civil Rights would issue strong new guidance requiring colleges to stem online harassment “because schools, quite frankly, are very scared of lawsuits.”

Unfortunately for Katz and others who think like her, that stick can also be wielded by offending Yik Yak users, who may start filing lawsuits of their own if federally-funded schools get into the business of regulating off-campus speech.

Filed Under: anonymous speech, civil rights, colleges, free speech, harassment, title ix, title vi
Companies: yik yak

DailyDirt: Which College Is The Best?

from the urls-we-dig-up dept

Astute high school seniors are looking at which colleges to apply to, and there is no dearth of college rankings to make some schools look better than others on paper. If a college applicant is looking for "earning power" -- it's not the school, but the choice of major that really matters. (And remember: Bill Gates, Steve Jobs, Mark Zuckerberg, etc, etc. never even graduated from college...) If you're looking for social networking, it might help to go to a prestigious school -- or you could just try to be really active on Twitter/Facebook. Maybe the best strategy is to apply to as many schools as possible, and figure it out after the thick acceptance letters are sent out.

• There are a LOT of college ranking lists, but the Department of Education doesn't publish one itself. The DoE has a scorecard for schools, so you can create your own list from the data, if you wanted to. Depending on what criteria or factors you value, you can generate all kinds of "top 50 schools" (or worst schools) lists. [url]
• If you want to get really meta, The Atlantic posted a ranking of college ranking rankings. Okay, this is a pretty useless, but amusing, list of two lists. [url]
• Harvard is consistently at the top of several rankings, but does that mean it's the best school? If you're smart enough to get accepted to Harvard, you should probably go, but if you don't... you're not going to miss out on a high-earning career -- as long as you're still committed to life-long learning. [url]
• In the "top 10 schools in the world" ranking published by the London-based Times Higher Education, CalTech (California Institute of Technology) is in the top spot. American universities occupy 6 of the 10 spots, and this is the 5th consecutive time that CalTech has been at #1. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: colleges, department of education, education, rankings, schools, times higher education, universities

Iowa College Grants Hecklers More Veto Power, Resulting In Summoning Of Campus Police To Offending 'Free Speech Wall'

from the taking-your-words-into-custody dept

Last December, an artistic piece appeared on the University of Iowa (UI) campus that rubbed a whole lot of people the wrong way. It resembled a hooded KKK member and was constructed from newspapers containing stories on racial violence. UI, being a typical university, removed and condemned the artwork, apparently unable to see anything past the shape of the object -- like the subtext or even what its own condemnation meant in this context. (It was this effigy that prompted a completely ridiculous/trollicious response at Thought Catalog -- one that compared free speech to Nazism.)

The school went on to soothe its thin skin by inviting its students -- especially those with equally thin skin/inability to contextualize artistic statements -- to come up with more ideas for repressing further free speech.

Emails obtained Wednesday by The Gazette reveal UI administrators sent that draft to student leaders who had expressed indignation over the effigy, asking for “suggestions.” The students sent a “response draft” with a handful of changes and stronger language.

UI Vice President for Student Life Tom Rocklin said in internal emails that “some of what they have written, I think, is out of the question.”

The students, for example, suggested [President Sally] Mason call the statue a “portrayal of hate” and say “this action of an individual at an educational institution at the pedestal of the Pentacrest was not and will never be tolerated.”

They also suggested Mason call for an investigation.

Fortunately, most of the suggestions were never implemented. But the university still forced the artist -- a visiting professor who was on hand during the controversial effigy's very brief appearance on campus to answer questions and explain his motivations -- to remove it from the campus' informal free speech area, called the "Pentacrest."

The better news is that another local college -- Kirkwood University -- has found a home for Professor Serhat Tanyolacar's artwork.

Titled, "Fear of Art: Free Speech, Controversy and Public Space," the forum attracted about 150 Kirkwood faculty, students and community members — who posed dozens of questions after a 30-minute opening statement from Tanyolacar.

UI, meanwhile, maintains that it didn't remove the effigy because it was supposedly offensive, but because Tanyolacar didn't ask its permission before exercising his First Amendment rights. The administration also claims that if it had been asked, it would have granted its permission. This, of course, can't be proven after the fact, so it's a safe thing to say, even if most people don't believe a word of it.

What the university has done with its swift removal of protected expression in response to a heckler's veto is provide the student body with a blueprint for further attacks on free speech. FIRE's (Foundation for Individual Rights in Education) Ari Cohn phrases it this way:

@uiowa has turned its students into such anti-#freespeech goblins that they are calling police to report suspected unregistered protests.

If you don't like something, start tattling.

University of Iowa police Lt. Joe Lang, who was on scene at the demonstration, said the police were called to the event because someone saw the demonstration and decided to report it.

“We’re out here to make sure they went through the proper channels to get permission for this demonstration,” he said “We’re protecting the vested interest of the university; we just want to avoid a situation similar to what happened a few months ago.”

The "demonstration?" A public "free speech wall" where any student could write down anything he or she wanted to, provided -- with permission from the university -- by the school chapter of the Young Americans for Liberty. But someone (or someones) on campus would rather shut down free speech -- using law enforcement, no less -- than deal with the possibility that someone might be offended.

This is the culture that is indulged by the University of Iowa. It claims (like many other schools that say one thing and do another) to be a supporter of free expression, but its previous actions show nearly no heckler will be denied his or her veto power. The school has decided -- through its statements and actions -- that free speech can only be defended if it's popular speech. UI's president, Sally Mason, has already gone so far as to apologize to students who felt "terrorized" by Tanyolacar's "unauthorized" artwork. In complete seriousness, she also claimed to support free speech while simultaneously asserting that the UI campus was no place for "divisive or insensitive displays."

The censoring of Tanyolacar's artwork has already produced a chilling effect on free expression, as is evidenced by the summoning of police to a free speech "demonstration." The campus cops are already geared up to "prevent" students from being "terrorized" by protected speech. And now a certain subset of students has been given more power than they can responsibly handle. It's clear which "side" of free speech the college has chosen to throw its weight behind: the side that limits, rather than encourages, an open exchange of ideas.

Filed Under: colleges, free speech, heckler's veto, iowa
Companies: university of iowa

California College Tells Student He Can't Hand Out Copies Of The Constitution On Constitution Day

from the SHUT-UP-AND-RETURN-TO-THE-DESIGNATED-'FREE-SPEECH-ZONE' dept

As an American with First Amendment rights, you'd probably assume that a "Free Speech Zone" would look something like this:

The blue on that map should represent areas where you can exercise your right to free speech. Unfortunately, for many college students, their "Free Speech Zone" shrinks considerably when on campus. One out of every six major colleges have designated "Free Speech Zones" where students are "permitted" to "enjoy" this Constitutional right, and even then there are restrictions. In these colleges, exercising your right to free speech means asking permission at least a couple of days in advance as well as having the administration "approve" your speech.

The latest example of confined and controlled speech comes to us courtesy of Modesto Junior College. As FIRE.org reports, a student found his exercise of free speech shut down on one of the worst days of the year for a college to assert its negative attitude towards the First Amendment.

In a stunning illustration of the attitude taken towards free speech by too many colleges across the United States, Modesto Junior College in California told a student that he could not pass out copies of the United States Constitution outside the student center on September 17, 2013—Constitution Day. Captured on video, college police and administrators demanded that Robert Van Tuinen stop passing out Constitution pamphlets and told him that he would only be allowed to pass them out in the college’s tiny free speech zone, and only after scheduling it several days or weeks ahead of time.

After 10 minutes of handing out these pamphlets, Van Tuinen was approached by a campus police officer. After some discussion regarding the ridiculousness of shutting down free speech on Constitution Day and Van Tuinen's repeated assertion of his rights, the campus cop tells him to take it up with administration.

[The officer sends out a little cheap shot before Van Tuinen moves on, telling him, "Look at you. You're shaking." This is a common cop tactic designed to both a) cast suspicion on the person and b) assert the officer's control of the situation. The fact that it's a byproduct of the fight-or-flight response is ignored. People speaking to armed authority figures will often appear nervous because that's how the human brain works. It's not solely a byproduct of fear or guilt. It's adrenaline being pumped with no available outlet.]

The response he receives from administration is no less ridiculous, considering it relies heavily on quoting policy rather than acknowledging the absurdity of shutting down free speech on Constitution Day. (As if it would be any less ridiculous on any other day of the year, but Constitution Day?)

Upon arriving at that office, Van Tuinen talks with administrator Christine Serrano, who tells him that because of “a time, place, and manner,” he can only pass out literature inside the “free speech area,” which she informs him is “in front of the student center, in that little cement area.” She asks him to fill out an application and asks to photocopy his student ID. Hauling out a binder, Serrano says that she has “two people on campus right now, so you’d have to wait until either the 20th, 27th, or you can go into October.” Van Tuinen protests that he wants to pass out the Constitution on Constitution Day, at which point Serrano dismissively tells him “you really don’t need to keep going on.”

So, now everything's clear. In a nation where free speech is one of the foundations of society, an American in a public American college (founded by legislation and infused with public money via grants) is restricted to "that little cement area" (see below) -- and then only with advance notice and permission. Free speech possibly available in October -- get your reservation in now!

As FIRE's Robert Shibley points out, there's really no way Modesto Junior College could have handled this situation any worse than it did.

“Virtually everything that Modesto Junior College could do wrong, it did do wrong. It sent police to enforce an unconstitutional rule, said that students could not freely distribute literature, placed a waiting period on free speech, produced an artificial scarcity of room for free speech with a tiny ‘free speech area,’ and limited the number of speakers on campus to two at a time. This was outrageous from start to finish. Every single person at Modesto responsible for enforcing this policy should have known better.”

Free speech isn't something you box up and dole out. It's the right of all citizens. Modesto Junior College should know this, being a public college, but has apparently decided it's much easier to avoid uncomfortable or unpopular speech by violating its students' First Amendment rights.

Filed Under: colleges, constitution, free speech, free speech zone, modesto junior college, robert van tuinen

MPAA Reminding Universities They Need To Crack Down On File Sharing -- Leaves Out How It Lied To Get The Law Passed

from the omissions dept

Back in 2008, we wrote about how the MPAA convinced Congress to pass legislation to make colleges and universities responsible for reducing copyright infringement on campus or lose federal funding. The law was really a trial run of sorts -- an attempt to see how this could work for making ISPs responsible. Of course, in order to get the law passed, the MPAA flat out lied. It made up numbers, saying that 44% of "losses" from file sharing came from college campuses. This number was so ridiculously wrong that the MPAA later claimed "human error" before saying the number was really 15%. But even that was dubious -- and when the GAO asked the MPAA to support these numbers, the MPAA refused to provide the data. Pretty telling.

So, the entire law was passed under totally false pretenses. If Congress had any sense of what's right, it would repeal the law. But, instead, the law went into effect recently, and now the MPAA is sending out letters reminding universities that they need to start acting like copyright cops. Of course, they leave out the fact that they got the law put in place by lying to Congress. Funny how they would omit that. So, kids, the lesson of the day is: it's okay to lie to Congress to force colleges to spend money to protect your obsolete business model, but sharing a movie you really liked with a friend is evil. Makes sense.

Filed Under: colleges, file sharing, universities
Companies: mpaa

Gov't Reminds Colleges They Need To Start Taking Money From Students And Sending It To The Entertainment Industry

from the nice-of-them dept

You may remember that the entertainment industry was able to get a nice little clause inserted into the Higher Education Opportunity Act of 2008 that required universities to educate students on the evils of file sharing, to try to block file sharing on campus and also to sign up for "legal" alternatives (i.e., charge students more money to filter it directly to the record labels and movie studios). Yes, you read that right. The law requires universities to push their students to use "legal alternatives," even to the point of having the university take "activity fees" from students for that purpose From the Department of Education's website:

34 CFR 668.14(b)(30) also requires that an institution, in consultation with the chief technology officer or other designated officer of the institution, to the extent practicable, offer legal alternatives to illegal downloading or otherwise acquiring copyrighted material, as determined by the institution. An institution must periodically review the legal alternatives for downloading or otherwise acquiring copyrighted material, and make the results of the review available to its students through a Web site or other means.

It was a clear case of the government creating subsidies for the entertainment industry, by taking money away from students and education. It's difficult to see how anyone can defend such a law. Universities that fail to do this face the possibility of losing financial aid for students. Seriously.

We hadn't heard much about this in a while, but Michael Scott points us to the news that the Department of Education has started sending out letters reminding universities and colleges that this part of the law goes into effect in July. The letter itself reminds universities of the various requirements to stay on the entertainment industry's good side. Higher Education Opportunity Act or Subsidize the Entertainment Industry Again Act?

Filed Under: colleges, copyright, education, financial aid, subsidies, universities

University Makes Students Take Copyright Quiz To Get Timed Access To P2P

from the as-if-that-will-work dept

Broadband Reports points us to a rather unique attempt by Missouri University of Science & Technology to deal with the fact that the RIAA/MPAA are upset with students at the university for using file sharing apps. It's using traffic shaping apps to block access to P2P systems... but, it will give students timed access if they first successfully complete a quiz about copyright issues. You need to get a perfect score (or no BitTorrent for you!) and you get six hours, which they hope you're now using for legal file sharing (though, they don't check). If you want more time, you need to ace the quiz again (the questions change). You can get up to 8 "passes" per month.

It's definitely different... but hardly likely to be very effective. I'd imagine that students who really want unauthorized material will find ways around the block, using VPNs or proxies or something. Also, as Broadband Reports notes in its writeup, students who do get in can download unauthorized material and then share it internally across the network using different systems. But, most importantly, this is (yet again) based on the idea that everyone is being treated as a criminal first. There may be legitimate academic reasons for using P2P systems, but the Missouri University of Science and Technology won't be participating in many, because it's put up a barrier to usage.

Filed Under: colleges, missouri university, p2p, quiz
Companies: missouri university

Oregon Attorney General And University Of Oregon Tell The RIAA They're Not Its Free Investigators

from the can't-just-push-around-students dept

Earlier this year, the RIAA began to focus many of its file sharing lawsuits on college students. The RIAA incorrectly referred to it as an education campaign, when it might more accurately be described as pissing off the very people the RIAA needs to support any future business model (oops, too late for that). While the RIAA tried to force universities to just hand over the names of those it accused of file sharing, it was nice to see at least a few universities fight back. In most cases, this mean telling the RIAA to shove off, as it wasn't the university's job to help serve legal complaints. Eventually though, when subpoenas came through, most universities would hand over the info. However, it looks like the University of Oregon is taking a stand. Together with the Attorney General of Oregon, they've actually filed a motion to quash the RIAA's attempt to identify students at the school. In other words, they're not just refusing to pass on the info, they're actively pushing back against the RIAA's lawsuit.

Specifically, the Attorney General points out that with just IP addresses, it's basically impossible to identify the students that the RIAA is asking the university to hand over: "Plaintiffs' subpoena is unduly burdensome and overbroad. It seeks information that the university does not readily possess." In order for the university to figure out who was associated with those IPs, it would involve a level of investigation that isn't required (and shouldn't be required) under law. In other words, the university isn't there to be the free investigative arm of the RIAA. It doesn't get to just throw some weak evidence over the wall and tell the university to figure out who's responsible. Either it comes up with a better way to find the information itself, or it should stop filing these lawsuits. It should be interesting to see if this works... and if other universities follow suit.

Filed Under: colleges, copyright, file sharing, lawsuits, music, oregon, students
Companies: riaa, university of oregon