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boalt.org: a Boalt student group working for the public interest in technology law

the memo


boalt.org Director's Note: What follows is The Memo That Saved boalt.org by Prof. Samuelson.

MEMO

To: Dean Herma Kay
From: Pamela Samuelson
Re: boalt.org
Dated: 3 September 1999

I have had an opportunity to investigate further the issues arising from the desire of a Boalt-related student organization to use the name "boalt.org" as its name and as a domain name for its website. This investigation proved to be an odder exercise than I'd expected, in part because the policies published by the Office of Marketing and Management of Trademark (OMMT) are less clear on some key points than one might have expected. Because of this, I want to address the boalt.org issue first as a matter of trademark law, and then in light of the OMMT policy statement.

First, trademark law: The term "boalt.org" is, in my judgment, a descriptive term when used to identify an organization affiliated in some way with Boalt Hall Law School. The term "boalt.edu" or "boalt.net" are also descriptive, but they have more of an institutional connotation. That is, boalt.edu would tend to connote the law school itself, and boalt.net would connote a computer network that might be operated at or by Boalt. However, boalt.org suggests either a student or an alumni organization, and as long as the organization was, in fact, affiliated with Boalt Hall in some way, the descriptive character of the term would be accurate, not false. Boalt.org used by a totally outside organization might be confusing to the public if it falsely suggested a connection between the organization and Boalt Hall. It is, however, conceivable that some organization out there--the Bilateral Organization of Astronomers, Leafblowers, and Teachers--might have a legitimate descriptive interest in boalt.org, in which case whoever got to the domain name registration system first would win the right to use this domain name. Neither OMMT nor Boalt Hall School of Law could stop use of this domain name, so at least boalt.org is preserving the name for a Boalt Hall-related organization.

Second, the OMMT policy: The OMMT document entitled Policy on the Use of the University's Names, Seals and Trademarks sets down regulations about the use of the University's name, the campus' name, certain seals of the University and the campus, and Berkeley campus trademarks (such as the Campanile and Sather Gate). Strictly speaking, its definitions do not appear to apply to subdivisions of the campus, such as Boalt Hall, at all. Since the boalt.org issue does not concern use of either the University's or the Berkeley campus' name or Berkeley trademarks as such, on one reading, the policy does not apply to the use of "Boalt" names. If this is so, then the matter would not seem to be one falling under the OMMT policy, and recourse to trademark law would seem to be a reasonable way to address a student organization's use of a term of this sort. And if OMMT wants the policy to apply to subdivision names, it should refine the policy so it will give clear notice of its reach. In the absence of a revised policy, it may be fair to infer that the policy does not reach subdivision names.

If this construction of the OMMT policy seems overly narrow, let us proceed to the next ambiguity in the policy. There are two kinds of student-related organizations that can use the name of the Berkeley campus (and for the purposes of this paragraph, the name of a Berkeley campus subdivision): sponsored student groups (SSGs) and registered student groups (RSGs). Oscar Cisneros isn't sure which kind boalt.org might be. The policy defines these terms in a way that seems to require that these organizations must either be approved by (in the case of SSGs) or registered with (in the case of RSGs) the Office of Student Activities and Services. I don't know whether boalt.org (or any other student organization at Boalt) satisfies either definition, but it would seem fair for even an unregistered student organization to identify itself as a student organization at Boalt if this was true. It would be wrong for such an organization to misrepresent itself as an approved or registered student organization if that wasn't true, but this does not seem to be the case here. And presumably an unregistered group could register and then qualify under the policy to use the name in a manner consistent with the policy.

Let's assume for the sake of argument that boalt.org either is or will soon become at least a RSG at Berkeley. The OMMT policy, as I read it, would allow the RSG to make noncommercial uses of the campus name (and, by extension, the Boalt Hall name, assuming that this name is implicitly covered by the term "campus" under the policy) "for identification purposes." "For identification purposes" is not defined in the policy. The policy goes on to say that if a student group uses the campus name in a way that suggests or implies its or the University's support of the group's positions or activities, the group may be required to make an adequate disclaimer to dispel this impression.

Does boalt.org use the term "Boalt" for identification purposes? The student supporters say yes, and their claim is plausible. It is noteworthy that the recommendation OMMT makes is that the students use the name "boaltstudents.org" instead of boalt.org. Consider, though, that boaltstudents.org uses the Boalt name quite as much as boalt.org; it only inserts a word in the middle. That word, in OMMT's view, will dispel any possible confusion about the nature of the organization. However, I would argue that their preferred name, as applied to the specific organization we are talking about, would be confusing in a way that OMMT doesn't recognize. That is, an ordinary person would understand the name "boaltstudents.org" to refer to an organization of Boalt students generally. However, the organization that now calls itself boalt.org is not a general student organization, as I understand it, but an organization of high technology-oriented students whose mission is, among other things, to help other Boalt student organizations have a web presence. This organization has also planned other activities for this year, including hosting a speaker series on high-tech issues. In the mock-up of a new website for Berkeley Center for Law & Technology which the codirectors looked at today, a link to boalt.org was shown. This indicates that within the law school, boalt.org is perceived as a law and technology student organization, not a general student organization.

If use of the term "boalt.org" comes down to the issue of confusion, then we are back to the trademark issue discussed above. In my judgment, the term by itself does not confusingly suggests that it is an official or semi-official Boalt Hall site. So then the question is whether use of this term is confusing in the context of the website. While OMMT was partly concerned about the word alone, it also stressed a concern that the content of the site might falsely imply the law school's endorsement of or "involvement" in the site. As I previously indicated, the confusing-in-context concern can be solved by having someone on the staff monitor the site to ensure that it is not expressly or impliedly confusing the public and to ensure that the site otherwise satisfies university guidelines. I would guess that the law school would want to do some monitoring of student websites even if named boaltstudents.org. In addition, one could require the students to prominently display a notice that the site is student-run if this is one's main concern.

Like Bob Berring, I believe that the student organization boalt.org is an outstanding example of initiative and enthusiasm of Boalt's technology savvy students who are volunteering their time, energy and resources to add significantly to the Boalt Hall experience for students. If I thought their use of the term was confusing, I would say so. I realize that a more conservative position can be taken on this issue, but you asked me what I thought and this memo makes my argument about why the students should be allowed to continue to use the name and encouraged to continue to use it in a responsible fashion.


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