Mark of the Devil: The University as Brand Bully

I teach at Duke University, an institution I love.  The reverse may not be true however, at least after my most recent paper (with Jennifer Jenkins) — Mark of the Devil:  The University as Brand Bully.  (forthcoming in the Fordham Intellectual Property and Entertainment Law Journal).  The paper is about the university most frequently accused of being a “trademark bully” — an entity that makes assertions and threats far beyond what trademark law actually allows, something that is all too common, with costs to both competition and free speech.   Unfortunately, that university is our own — Duke. 

For years, online rankings have Duke near the top of the charts for trademark bullying — not as compared to other universities, as compared to all  companies doing business in the US.  Here are 4 years of rankings from the website “Trademarkia.”  As you can see, Duke is second only to the famously litigious Monster Energy Company.  (Duke’s rank fell to #8 last year, which was good news.  Unfortunately, one reason is that oppositions have risen overall rather than merely that Duke’s have declined.) 

But what are these online rankings based on?  The methodologies are not transparent and the easiest methods — for example, counting how many times an entity opposed the registration of another company’s trademark — are obviously flawed.  If Nike opposes more trademarks than Boyle’s House of Brisket, we shouldn’t be surprised.  

Jennifer Jenkins and I teach intellectual property — including trademark — at Duke Law School.  We had seen these stories.  Indeed, colleagues from other law schools  would tease us about them, but we were skeptical. In the areas we knew about —  copyright or fair use policy, for example — Duke was actually very enlightened.  Eventually, our interest was piqued so much that we conducted what is, so far as we know, the first empirical study of the trademark assertion practice by a university.   We thought it might well show Duke’s innocence of the bullying charge.  Umm..  Not so much. 

Our empirical study was divided into two parts:  The Comparative Study and the Merit Study. We focused on “oppositions” and “cancellations” — the process by which a trademark owner objects to someone filing a new mark, because they think it is too close to their own or attempts to cancel a mark that had been granted.  importantly, both challenges occur after a PTO examiner has concluded that the new mark does not appear to be likely to cause confusion. In the Comparative Study we tried to find endogenous variables that might explain disparate rates of trademark oppositions.       Perhaps academically elite institutions had lots of parasites and free riders eager to file marks that cut a little too close to the names or logos of famous colleges.  Thus we compared Duke to the top ten academically ranked institutions. 

Ok.  Well that clearly isn’t the key.  How about athletics?  Duke has an excellent athletics program, obviously in basketball, but also in a number of other less famous sports.  Merchandise is an important part of college sports — for good or ill.  We compared Duke to the top ten athletics programs in terms of revenue. 

For the first time we can begin to see some increases — Texas at 30 is obviously very assertive — but again there is nothing in Duke’s league.  Maybe there is something specific to basketball?  Again we went with monetary value of the program rather than some more subjective measure of merit on which sports fans could argue for ever.  Revenue, after all, seemed plausibly related to the need to assert one’s marks. 


No, that wasn’t it either.  In fact, we realized in shock, Duke had filed substantially more oppositions than all of the other universities in our three top ten categories combinedDuke may indeed be “one of the most visible brand names in higher education” but it is hardly more visible than Harvard, Yale, Stanford, MIT, Princeton, Texas, Alabama, Michigan, LSU, Kentucky, Ohio State, Auburn and 16 others put together. Still, perhaps Duke was right about trademark law and all the others wrong?  We then hand coded all of Duke’s Oppositions or Cancellations on a four part scale in terms of their quality.  The results were not pretty. 

An astounding 85% if Duke’s oppositions were either “clearly erroneous” or “far fetched.”  To put it another way, if they had only filed the oppositions we had coded as “:sound”, they would have been close to the median in the most assertive comparison group — top athletic programs.  Duke is a bully.  Wow, what a bully.  But our article tries to show that it is an interesting bully — teaching us things about the excesses of modern trademark law and culture, but also about the way in which universities can lose their way when they attempt to turn themselves into mega-brands and licensing factories.  What’s more Duke may be a bellwether, boldly bullying, where others will eventually follow.  Universities now use over aggressive  to police their reputations, even though that far exceeds their real legal rights. Stanford bullied a film company into changing the title of a movie about someone who steals to finance a Stanford education from Stealing Stanford to Stealing Harvard. NYU got the show Felicity from having an NYU student engage in sexual relations while in college: what could be more implausible!?  Boise State thinks it owns all non-green football fields.  All of thse claims were nonsense, of course, mere bullying, but they represent a disturbing trend.



For the details on all of that, you will have to read the article, but here is a taste….

“We think our study also has implications for universities.  Are universities straying from their core goals?  Corporations have a straightforward metric for action; maximize shareholder value.  Universities, by contrast, serve many masters – education, research, the generation and dissemination of knowledge, the preservation of the scholarly commons, the values of free speech and civil debate, the interests of the students, faculty, staff and alumni/ae that make up the university community.  It is possible to imagine a world in which a university transforms itself into a mega-brand while, at every stage, continuing to respect those values. In that world, the university gains extra revenue, raises its visibility and stays true to its core mission – a win-win situation. It is also possible, and we would argue, likely, that in areas ranging from aggressive patent licensing practices,[1] to the trademark excesses we document here, to large-scale college athletics,[2] universities have lost their way.  The latter comparison may be particularly revealing. Consider the testimony of Sonny Vaccaro to the Knight Commission on Intercollegiate Athletics.

“I’m not hiding,” Sonny Vaccaro told a closed hearing at the Willard Hotel in Washington, D.C., in 2001. “We want to put our materials on the bodies of your athletes, and the best way to do that is buy your school. Or buy your coach.” Vaccaro’s audience, the members of the Knight Commission on Intercollegiate Athletics, bristled. These were eminent reformers—among them the president of the National Collegiate Athletic Association, two former heads of the U.S. Olympic Committee, and several university presidents and chancellors…. Not all the members could hide their scorn for the “sneaker pimp” of schoolyard hustle, who boasted of writing checks for millions to everybody in higher education. “Why,” asked Bryce Jordan, the president emeritus of Penn State, “should a university be an advertising medium for your industry?”  Vaccaro did not blink. “They shouldn’t, sir,” he replied. “You sold your souls, and you’re going to continue selling them. You can be very moral and righteous in asking me that question, sir,” Vaccaro added with irrepressible good cheer, “but there’s not one of you in this room that’s going to turn down any of our money. You’re going to take it. I can only offer it.”[3]

Being a trademark bully, in other words, is part of a larger transformation about which universities should think long and hard.  What is to be done? Our suggestion is a wide-ranging value-audit, in which the university asks a group of internal stakeholders and external advisors to assess the coherence of the university’s various activities with its multiple missions.  There are many possible definitions of “mission-creep” but a pretty good one is the point at which a university claims to be in the business of producing goods and services “in virtually all areas of endeavor, to men, women and children of all ages.”

We do not romanticize universities: we work at one.  We experience the quotidian idealistic delight and frequent disillusionment of big academe. But we care about universities’ core values Those values seem very strange to the larger society. Why study unpopular ideas? Why care passionately about the truth, even when it doesn’t pay? They are also profoundly fragile. It is possible, of course, that an institution could cherish those values and also become a commercial mega-brand culture with a dubious connection to veracity.  We would not take that bet. 

Right now, Duke is an anomaly.  Will it be one in the future?  Perhaps in the domain of trademark oppositions.  As we have tried to demonstrate, many of Duke’s trademark oppositions are expensive, legally ungrounded and, while interfering with the legitimate businesses of others, produce little for Duke beyond bad publicity. But what about the wider attempts to use baseless intellectual property claims to police activities universities do not like?  There we think that Duke’s aggressiveness might represent the future.  We fear, in fact, that Duke is boldly bullying where many universities will eventually follow.  We hope this article sounds a warning.

Universities should not be trademark bullies, or for that matter, copyright or patent trolls. If they do not remember this fact, will athletic shoe licensing revenue, satisfaction from stopping an unrelated business from gaining marks they have every right to, claiming ownership of the definite article, or preventing fictional portrayals of sexually active or larcenous students, compensate for the loss? We doubt it.  To our university we would quote another Duke, (Ellington) “A problem is a chance for you to do your best.”  And, no, we don’t own his name either.

Earlier, we mentioned “the preservation of the scholarly commons” as one of a university’s core goals.  At the time of writing, Duke had filed one more trademark.  It is over the phrase “Scholarly Commons.” [4] That is exquisite irony, of course. But, as our study shows, it may be disturbingly emblematic of the future of academic intellectual property.”



[1] Mark Lemley, Are Universities Patent Trolls? 18 Fordham Intell. Prop. Media & Ent. L.J. 611 (2008). 

[2] Gerald Gurney et al, Unwinding Madness: What Went Wrong with College Sports—and How to Fix It. (2017). 

[3] Taylor Branch, The Shame of College Sports The Atlantic October 2011.

[4]  U.S. Serial No. 87,946,903 (filed June 4, 2018). Now abandoned, thankfully.


Sunday, February 21st, 2021 Uncategorized

From the Blog

  • The Line: AI & The Future Of Personhood

    James Boyle

    My new book, The Line: AI and the Future of Personhood, will be published by MIT Press in 2024 under a Creative Commons License and MIT is allowing me to post preprint excerpts. The book is a labor of (mainly) love — together with the familiar accompanying authorial side-dishes: excited discovery, frustration, writing block, self-loathing, epiphany, and massive societal change that means you have to rewrite everything. So just the usual stuff. It is not a run-of-the-mill academic discussion, though. For one thing, I hope it is readable. It might even occasionally make you laugh. For another, I will spend as much time on art and constitutional law as I do on ethics, treat movies and books and the heated debates about corporate personality as seriously as I do the abstract philosophy of personhood. These are the cultural materials with which we will build our new conceptions of personhood, elaborate our fears and our empathy, stress our commonalities and our differences. To download the first two chapters, click here. For a sample, read on…..

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  • Everything You Know About §230 Is Wrong (But Why?)

    James Boyle, Oct 25th, 2021

    There are a few useful phrases that allow one instantly to classify a statement.  For example, if any piece of popular health advice contains the word “toxins,” you can probably disregard it.  Other than, “avoid ingesting them.” Another such heuristic is that if someone tells you “I just read something about §230..” the smart bet is to respond, “you were probably misinformed.” 

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  • Free, Open, Intellectual Property Textbook

    Jennifer Jenkins and I have just published the 2021 edition of our free, Creative Commons licensed, Intellectual Property textbook.

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  • ‘Dumping: On Law Reviews’. The Green Bag

    I will probably never be published in a law review ever again after writing this.  I find myself curiously untroubled by the thought.  

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  • Mark of the Devil: The University as Brand Bully

    I teach at Duke University, an institution I love.  The reverse may not be true however, at least after my most recent paper (with Jennifer Jenkins) — Mark of the Devil:  The University as Brand Bully.  (forthcoming in the Fordham Intellectual Property and Entertainment Law Journal).  The paper is about the university most frequently accused of being a “trademark bully” — an entity that makes assertions and threats far beyond what trademark law actually allows, something that is all too common, with costs to both competition and free speech.   Unfortunately, that university is our own — Duke. 

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  • Tragedy/Comedy of the Commons @ 50

    The Economist was kind enough to ask me to write an article commemorating the 50th anniversary of Garrett Hardin’s Tragedy of the Commons.  ““THE ONLY way we can preserve and nurture other and more precious freedoms is by relinquishing the freedom to breed.” This ominous sentence comes not from China’s one-child policy but from one of the 20th century’s most influential—and misunderstood—essays in economics. “The tragedy of the commons”, by Garrett Hardin, marks its 50th anniversary on December 13th.”  Read the rest here.

  • Theft: A History of Music — Free Comic


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  • (When) Is Copyright Reform Possible?

    I am posting here a draft of a chapter for Ruth Okediji’s forthcoming book on the possibilities of international intellectual property reform.  In my case, the article recounts the lessons I learned from being part of the Hargreaves Review of Intellectual Property in the UK.

    “In the five months we have had to compile the Review, we have sought never to lose sight of David Cameron’s “exam question”. Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes. We have found that the UK’s intellectual property framework, especially with regard to copyright, is falling behind what is needed. Copyright, once the exclusive concern of authors and their publishers, is today preventing medical researchers studying data and text in pursuit of new treatments. Copying has become basic to numerous industrial processes, as well as to a burgeoning service economy based upon the internet. The UK cannot afford to let a legal framework designed around artists impede vigorous participation in these emerging business sectors.” Ian Hargreaves, Foreword: Hargreaves Review (2011)

    Read the chapter.

  • Apple Updates — A Comic

    sampleEver been utterly frustrated, made furious, by an Apple upgrade that made things worse?  This post is for you.  (With apologies to Randall Munroe.)

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  • Open Coursebook in Intellectual Property

    Cover of Intellectual Property: Law & the Information Society and link to purchase at Amazon.comDuke’s Center for the Study of the Public Domain is announcing the publication of Intellectual Property: Law & the Information Society—Cases and Materials by James Boyle and Jennifer Jenkins. This book, the first in a series of Duke Open Coursebooks, is available for free download under a Creative Commons license. If you do not want to use the entire casebook you can view and download the individual chapters (in a variety of formats) here. It can also be purchased in a glossy paperback print edition for $29.99, $130 cheaper than other intellectual property casebooks.

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  • So you’ve invented fantasy football, now what?

    We are posting excerpts from our new coursebook Intellectual Property: Law and the Information Society which will be published in two weeks is out now! It will be is of course  freely downloadable, and sold in paper for about $135 less than other casebooks.  (And yes, it will include  discussions  of whether one should ever use the term “intellectual property.” )  The book is full of practice examples..  This is one from Chapter One, on the theories behind intellectual property: “What if you came up with the idea of Fantasy Football?”  No legal knowledge necessary.  Why don’t you test your argumentative abilities…?

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  • Free/Low Cost Intellectual Property Statutory Supplement

    Today, we are proud to announce the publication of our 2014 Intellectual Property  Statutory Supplement as a freely downloadable Open Course Book. Statutes Cover  It offers the full text of the Federal Trademark, Copyright and Patent statutes (including edits detailing the changes made by the America Invents Act.)  It also has a number of important international treaties and a  chart which compares the various types of Federal intellectual property rights — their constitutional basis, subject matter, length, exceptions and so on.You can see it here in print, or download it for free, here

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  • Persnickety Snit

    This is the fourth in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  It is about lawyers and language. 

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  • Macaulay on Copyright

    Macaulay’s 1841 speech to the House of Commons on copyright law is often cited and not much read.  In fact, the phrase “cite unseen” gains a new meaning.  That is a shame, because it is masterful.  (And funny.) One fascinating moment?  When Macaulay warns that copyright maximalism will lead to a future of rampant illegality, as all happily violate a law that is presumed to have lost all moral legitimacy.

    At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…  Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

    The legal change he thought would do that?  Extending copyright to the absurd length of life plus 50 years.  (It is now life plus 70).  Ah, Thomas, if only you could have been there for the Sonny Bono Term Extension debates.

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  • Mark Twain on the Need for Perpetual Copyright

    This is the second in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  The first was Victor Hugo: Guardian of the Public Domain The book will be released in late August.

    In 1906, Samuel Clemens (who we remember better by his pen name Mark Twain) addressed Congress on the reform of the Copyright Act.  Delicious.

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  • Victor Hugo: Guardian of the Public Domain

    Jennifer Jenkins and I are frantically working to put together a new open casebook on Intellectual Property Law.  (It will be available, in beta version, this Fall under a CC license, and freely downloadable in multiple formats of course.  Plus it should sell in paper form for about $130 less than the competing casebooks. The accompanying statutory supplement will be 1/5  the price of most statutory supplements — also freely downloadable.)  More about that later.  While assembling the materials for a casebook, one gets to revisit the archives, reread the great writers.  Today I was revisiting Victor Hugo.  Hugo was a fabulous — inspiring, passionate — proponent of the rights of authors, and the connection of those rights to free expression and free ideas.

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  • “We Need To Start Seeing Other Futures..”

    Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks.

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  • Discussion: “The Foolish War Against Song-Lyric Websites”

    Professor Alex Sayf Cummings, author of a fascinating book called Democracy of Sound: Music Piracy and the Remaking of American Copyright in the 20th Century (recommended as a  thought-provoking read)  has an interesting  post up about attempts to shut down music lyric sites such as

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  • The Top Ten List of a Conference Planner

    Academics (and others) arrange conferences.  Perfectly normal people are invited to those conferences to speak.  Most of them are just as charming as can be… but then there are the special ones.  This Top 10 List of the special people one has to respond to is devoted to all conference planners everywhere.  Hold your heads up high.  After this, purgatory should be a snap.

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  • (EM)I Has A Dream

    EM(I) Has A DreamAugust 28th, 2013 is the 50th anniversary of Martin Luther King’s “I Have a Dream” speech. The copyright in the speech is administered by EMI, with the consent of the King family. Thus the speech may not be freely played on video or reproduced and costlessly distributed across the nation — even today. Its transient appearance depends on the copyright owner’s momentary sufferance, not public right. It may disappear from your video library tomorrow. It has even been licensed to advertise commercial products, including cars and mobile phone plans.

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  • The Prosecution of Aaron: A Response to Orin Kerr

    Aaron Swartz committed suicide last week.  He was 26, a genius and my friend.  Not a really good friend, but someone I had worked with off and on for 11 years, liked a lot, had laughed with frequently, occasionally shaken my head over and deeply admired.

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  • The Hargreaves Review

    An Intellectual Property System for the Internet Age

    James Boyle

    In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright..  Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.”   Today the Review will be published. Its conclusion?  “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?  The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review.   (Full disclosure: I was on the Review’s panel of expert advisors.)

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  • Keith Aoki — A Remembrance Book

    A slideshow and downloadable book remembering Keith in words and pictures.  You can order a glossy, high quality copy of the book itself here from Createspace or here from Amazon.  We tried to make it as beautiful as something Keith would create.  We failed. But we came close; have a look at how striking it is… all because of Keith’s art.

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  • Now THAT is how you teach a class

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  • RIP, Keith Aoki

    Our friend, colleague, co-author and brilliant artist and scholar Keith Aoki died yesterday in his house in Sacramento.  He was 55 years old.

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