Harvard University is getting ready to sue an “eduCommerce” Web site called notHarvard.com, according to an article in the April 20 Harvard Crimson by Vasugi V. Ganeshananthan. The article quotes Harvard attorney Allan A. Ryan Jr. as saying, “We are taking a very close look at this because we are concerned at the obvious use of our name to promote a site that we have nothing to do with.” Ryan tells the Crimson that he’s unimpressed by an elaborate disclaimer on notHarvard.com that says it “is no way associated with Harvard University” and, indeed, that its intent is “to not be associated with Harvard University.”
Chatterbox, a Harvard graduate who spent many happy hours in the late 1970s sampling the cuisine at the unaffiliated Harvard House of Pizza on Massachusetts Avenue, and who spent many years sleeping on a set of unaffiliated steel Harvard frames, wonders why the selective outrage. Ryan tells the Crimson that the fact that notHarvard.com is in the education business makes it harder to ignore. “If someone has a dog-grooming salon called ‘notHarvard,’ that’s one thing,” he says. “If someone’s offering distance learning courses using our name, it’s a different story.” Yes, but the Web site isn’t called “HarvardEduCommerce.com.” It’s called “notHarvard.com.” Around the same time that Chatterbox was spending all his discretionary income at Harvard House of Pizza, several very funny writers in New York put out a parody of the New York Times called Not the New York Times. Chatterbox is pretty sure the Times never sued. But Ryan tells the Crimson, “You can’t hijack our name and then say, ‘We’re not them,’ and then use it anyway.”
The object of Harvard’s rage is a company that “uses free online education as a sales and marketing tool” to help businesses achieve “greater site stickiness, deeper customer intimacy and higher brand loyalty.” (Click here for the whole spiel.) In other words, it teaches consumers how to use stuff they buy. The better they know how to use the stuff, the more stuff they’ll want. Mark Rosenfelt, notHarvard.com’s founder, makes no pretense of being a serious educator; according to the New York Times, he used to carry business cards giving him the title, “marketing weasel.”
Does Harvard have a legal case? The crucial federal statute (state law varies) appears to be the Federal Trade Dilution Act, 15 USC section 1125(c), which Bill Clinton signed into law in 1996. This law gives the owner of a “famous mark” (i.e., a brand name well-known to the public) the right to prohibit other entities use of that mark, even if that use doesn’t cause confusion, provided that the use “causes dilution of the distinctive quality of the mark.” Hugh Latimer, a trademark lawyer in the Washington law firm of Wiley, Rein, and Fielding, explained to Chatterbox that there are two kinds of dilution. One, “blurring,” makes it appear that an established manufacturer of one kind of product is involved in making something that it doesn’t really make. “Kodak Bicycles” and “IBM toothpaste” would be examples. Apparently, this isn’t allowed, even when it’s obvious that you’re kidding. (Look out, Harvard House of Pizza!) The other, “tarnishment,” makes it appear that an established company is engaged in some déclassé activity that it isn’t really involved in. “McDonald’s House of Prostitution” and “Microsoft Pawnbrokers” would be examples. In both instances, there are exceptions that don’t appear to be applicable in this case for “comparative commercial advertising” (“Hertz is better than Avis!”), noncommercial use, and news reporting or commentary.
“I guess Harvard would argue tarnishment,” Latimer told Chatterbox, but “I wouldn’t want to bet too much on Harvard winning.” But David Korzenik, a trademark lawyer in New York who tends to represent publishers and other editorial outlets, thinks Harvard would have a good case claiming either tarnishment or blurring (he’s not impressed by the “not” preceding the Harvard name), and might also be able to claim straightforward trademark infringement if there’s “initial confusion by a consumer before they get to the [Web] site.” Chatterbox sees this baby going all the way to the Supreme Court.