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Houston, We Have A Law-School Trademark Problem

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Brand Image Protection: The trademark UNIVERSITY OF HOUSTON LAW CENTER enjoys an excellent, nationally recognized reputation for legal education services. That's not to suggest that the SOUTH TEXAS LAW SCHOOL, which has been around for 93 years, had a national brand identity problem, but exactly why did it feel compelled to suddenly change its name to the HOUSTON COLLEGE OF LAW?

A federal judge in Houston has issued a preliminary injunction to bring the name change to a halt. South Texas argued that there could never be any actual confusion because future law students would have many opportunities before submitting an application, much less agreeing to pay tuition, to discern that Houston College of the Law is not related to the University of Houston Law Center. However, the judge reached his decision by relying on the doctrine of "initial interest" confusion, where consumers (e.g., law students) are initially and mistakenly drawn to a would-be infringer but are quite clear before purchasing that it is not the trademark holder they may at first have thought it was. But, so the argument goes, the consumer having been fooled into visiting the competitor, may stay and transact business.

Was it necessary for the federal court to rely on initial interest confusion to reach the conclusion it did? Aren't there other scenarios relevant to law schools and how their names are encountered in the marketplace? Seems so. What about encountering an ad for a legal symposium sponsored by Houston College of the Law? Or what about donors searching the web to make a small donation to their niece's law school and making a mistake? What about lay people finding a web page with public-service legal information branded on top with HOUSTON COLLEGE OF THE LAW? Many may believe it's the same or related to the name UNIVERSITY OF HOUSTON LAW CENTER with whom they are somewhat familiar.

Maybe South Texas Law School can select a new name hinting at, but not infringing, the NASA name by conjuring the mystique that the Houston area enjoys. How about the ROCKET LAW CENTER? No, the legal self-help website ROCKET LAW would likely launch a quick action against that. Back to the drawing board.

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