INTELLECTUAL PROPERTY IN THE 21ST CENTURY

Robert E. Manley, Manley & Burke

As Greek letter organizations enter the 21st Century, they face new challenges and opportunities in regard to their intellectual property.

What is intellectual property? Do fraternities actually have intellectual property? Intellectual property includes all of the written and electronic information that a fraternity possesses about its organization, its members, its policies, its rituals, its name, its nicknames, and any distinguishing marks and emblems that it may use to identify itself. Training manuals, magazines, educational publications and videos, mailing lists, crests and Greek letters are all intellectual property.

Many Greek organizations take this valuable property for granted. The ”internet age” makes it easier than ever before for pirates to steal Greek intellectual property. Sometimes the theft happens without the Greek organization’s knowledge of the theft.

This is a new challenge, but it also is a new opportunity, because it should motivate the management of all fraternities to consult their intellectual property lawyers to make sure they have covered all bases to protect their valuable intellectual property assets.

The following is a series of issues that every  manager  of  a Greek organization should be discussing with its intellectual property lawyer as soon as possible:

• Are our trademarks registered?
• Is the registration current?
• Are there other distinguishing trademarks, emblems or collections of words or letters that should be registered as trademarks but have not been registered as trademarks? For example, many Greek organizations have “nicknames” that ought to be registered as trademarks. Also, many Greek organizations have developed distinctive symbols that are very different from their emblems, badges or letters, but nonetheless need legal protection.
• Does the fraternity have a written policy that makes it clear that members are not authorized to use the registered trademarks of their fraternity without authorization of the general management of the fraternity? Such a written policy will make it easier  to stop maverick members from producing silk screened vulgar cartoons on t-shirts that are identified with a particular fraternity.
• Does the fraternity have a written policy on the way in which a chapter may use the trademarks of the fraternity on chapter stationery and on the chapter web page?
• Does the fraternity have a written policy of how to enforce its trademarks?
• Does the fraternity have a history of effective enforcement of its trademarks?
• Does the fraternity have a written policy on the circumstances under which the mailing list of the fraternity may or may not be licensed for use?
• Does the fraternity have a written policy on governing the licensing and the use of its trademarks?
• Are printed materials copyrighted?

A serious discussion of these questions and similar questions with competent trademark counsel is more important as we enter the 21st Century than it ever has been in the past. Greek organizations had common law trademarks long before the United States Government Patent and Trademark Office began to register trademarks. Often in the past, Greek organizations have taken for granted their ownership rights in their intellectual property. Modern information technology makes it easy for mavericks to exploit fraternity trademarks on the Internet and in the production of affinity products. It is inexpensive to scan an emblem into a computer and then use it for improper purposes. If the emblems have not been registered as a trademark, it will be more difficult to stop the improper use of the emblem.

Many people in the fraternity world confuse the registration of a trademark and the issuance of a copyright. Copyrighted material is generally written or artistic material that is published. It may or may not be decorated with trademarks. Trademarks are distinctive marks that identify the organization in its field of activity. Generally, trademarks are more vulnerable to exploitation because of failure to keep the registration current or failure to have a viable enforcement policy.