By Steve McKelvey, J.D., University of Massachusetts Amherst Sport Management Department
The revenues to be derived from collegiate licensing, media and sponsorship continue to fuel a “land-grab” mentality in which companies such as IMG College, Learfield, ISP and ESPN College are currently engaged in record-setting bidding wars for the right to represent individual colleges and universities. Including the recent University of Georgia-ISP agreement (eight years, $92.2 million), the top 15 college marketing and multimedia rights deals alone total more than $1billion in guaranteed rights payments, over an average of 10.6 years.
This multi-billion dollar landscape of collegiate athletics served as the impetus for a recent study in which my colleagues Sheranne Fairley, Mark Groza and I investigated how “big time” athletics programs communicate trademark rights and licensing policy information via their official athletic Web site (this research study will be published in the upcoming issue of the Journal of Legal Aspects of Sports (Vol. 20, Issue 1)). More specifically, this study entailed a content analysis of what information is being provided, as well as an examination of where this information is located on official athletic Web sites and the paths to accessing it.
The sample used for this study comprised the top 75 revenue producing athletic departments as reported by the U.S. Department of Education (2008). As “big-time” athletic programs, these institutions are arguably more likely to attract a wide range of internal and external publics interested in securing an association with the institution (be it legitimately or illegitimately). One would thus expect that these “big-time” athletics institutions would, from a risk management perspective, have a stronger need and incentive for communicating information regarding trademark rights and licensing policy on their official athletic Web sites.
Each university’s official athletic department home page was analyzed for the presence of content (information) relating to trademark rights and licensing policy (using 18 items identified as important based on prior articles on the subject of collegiate trademarks and licensing). For the purposes of clarity in conducting the content analysis, the authors assigned the 18 items to four general categories, or themes. These included: 1) general trademark information; 2) licensing process and procedures; 3) guidance for specific trademark usages; and 4) repercussions. It was also pertinent to ascertain where this content was housed on the athletic department Web site. After all, the overall effectiveness of the athletics Web site as a communications tool is compromised if the information to be disseminated is not easily and logically accessible.
Below are some of the major findings from this study:
Of the 75 collegiate athletics Web sites reviewed, over half (42) contained no information whatsoever on trademark rights and licensing policy. Of the 33 Web sites that did contain a link to trademark rights and licensing policy information, two were found to be inaccessible (the relevant content for one was not viewable; the other was password protected). Of the remaining 31 Web sites found reviewable, 18 housed the information internally (on the actual official athletics Web site); the remaining 13 redirected users to a Web site external to the official athletics Web site (12 linked to the respective university’s general “Office of Trademarks” Web site section; one linked to the Web site of that university’s licensing agent).
Of the 31 reviewable Web sites, we found a general lack of consistency in the labeling and location of trademark and licensing information among the schools’ Web sites. There were a variety of tab-titles which eventually lead a visitor to the desired information, including: “Athletic Department,” “Athletics,” “Promotions,” “Inside Athletics, and “Athletics Association.” Once the initial tab-title was found, additional challenges were faced in identifying the desired path from a drop-down menu of additional items. Accessing the trademark rights and licensing policy information thus required clicking through at least two tabs in each case (four Web sites required the researchers to click through three separate tabs). Of the 31 official athletics Web sites that included accessible information on trademark rights and licensing policy, none included a direct link from their athletics homepage to this information.
The majority of the 31 Web sites (71 percent) included information providing an overview and history of the institution’s licensing program. Twenty-one of the 31 Web sites included a definition of the term “trademark,” although there were noticeable differences in the scope and breadth of these definitions. Only seven Web sites included information specifically stating the legal purpose of trademarks, and only three Web sites included reference to specific federal or state trademark laws.
As one might expect, the majority of the 31 reviewable Web sites included information on how to go about securing a license from the university, including licensing contact information (ah… the money making side of it!). Ten Web sites incorporated a direct link to a license application form.
Within the “specific usage” category, less than half of the 31 Web sites provided any specific policies and guidelines for in-house (internal university) use of trademarks, and fewer still provided information regarding internet use of university trademarks. Only ten Web sites provided information explicitly stating the athletic department’s policy regarding the use of university marks by political office candidates, and only eight Web sites provided information on the potential ramifications of trademark infringements and violations of licensing policies.
The issue of an institution’s color schemes as protectable trademarks is one that the vast majority of institutions overlooked; as noted above, for those Web sites that did define “trademark,” only three definitions included reference to color. This finding is interesting in light of the recent highly-publicized decision in the Smack Apparel case in which a federal court held that the plaintiff universities’ color schemes had acquired the requisite secondary meaning to afford trademark protection (Board of Supervisors of the Louisiana State University and Agricultural and Mechanical College, et al. v. Smack Apparel, 2008). Given this decision, one can argue that institutions should be doing more on their Web sites, particularly within their definition of trademarks and within specific trademark usage guidelines, to communicate the fact that school colors and color schemes are subject to trademark protection.
What might attribute to this general lack of trademark rights and licensing policy information on athletics Web sites? Perhaps it’s a lack of personnel and resources within the athletic department, and specifically individuals with legal training or expertise in matters relating to trademark law and licensing. Perhaps it’s a general lack of concern regarding legal-oriented issues, given athletic departments’ day-to-day challenges of program promotion and revenue-generation. Perhaps it stems from a lack of internal communication between the athletic department and the university’s overall trademark and licensing department. Perhaps it’s a bit of all of the above.
Given the importance of trademark protection for collegiate athletics programs, the financial impact of licensing programs, and the emergence of the Internet as a primary tool for controlled communications to internal and external publics, one would expect that the Web sites of the nation’s top athletics programs would be much more proactive in their use of the Internet to communicate this important information and much more comprehensive in terms of the information provided.
Granted, all 75 of the universities in this study have an “Office of Trademarks” department where one can find information relating to proper usage of university marks. However, the reality is that the majority of potential unauthorized and unlicensed uses of a university’s trademarks will emanate from the success and popularity of its athletic program (it’s doubtful there’s a big market for local businesses seeking to trade off the goodwill, free-load or otherwise ambush the biology and music departments!). Furthermore, there are numerous potential infringement issues that are specific to the athletics realm that extend beyond the university’s normal course of business, including the potentially unauthorized use of specific athletic team nicknames, school colors, mascots, game-day tickets in promotions, game schedules in sponsored promotional materials, trademarks in sports artwork, and trademarks in congratulatory/exhortatory messages.
Given both the omnipresence and effectiveness of the Internet as a communications tool in today’s world, this study provided strong evidence that athletic departments should be providing much more comprehensive trademark rights and licensing policy information on their official Web sites. At the very least, all athletic department official Web sites should be linked to the university’s Office of Trademarks Web site.
Granted, individuals, businesses or organizations that (wittingly or unwittingly) seek to capitalize on the popularity or to trade off the goodwill of their local university athletics program may be unlikely to first visit the university’s official athletic Web site to determine what they can and cannot do with respect to the university’s trademark rights and licensing policy. However, one can argue that including comprehensive information serves not only to educate internal and external constituents but also to put potential infringers on notice. As such, the incorporation of such information serves to more effectively and efficiently manage the risks of potential legal issues that typically result in negative publicity and costly legal bills.
