UC and the Streisand Effect

The recent actions of the University of Cincinnati have me thinking about Barbra Streisand.  And it's not because the football team has me wishing for "The Way We Were."  I am talking about the efforts of UC to rain on the parade of the Cheatham Middle School in Tennessee. 

As has been widely reported, UC recently sent a cease and desist letter to the Cheatham Middle School demanding that it stops using the Bearcat logo on its uniforms and promotional material.  So, what has this got to do with Ms. Streisand?  Well, there is an internet phenomenon known as "the Streisand Effect."  This is named for the time in 2003 when Ms. Streisand sent a cease and desist letter to photographer Kenneth Adelman to suppress the publication of a photograph showing her clifftop residence in Malibu, taken to document coastal erosion in California.  Once the letter got out, the public's attention turned to Ms. Streisand's residence in a major way.  Before the letter went public, the photo had been downloaded six times.  After the letter, 420,000 people visited the site in the next month.  This is the Streisand effect in a nutshell.

If the folks at UC were not previously aware of the Streisand Effect, they are now.  Coverage of UC's effort to convince Cheatham that enough is enough has gone viral.  A quick Google search of "Cheatham Middle School Bearcats" pops up headlines like "University of Cincinnati Forces Middle TN School to Find New Mascot;" and "University of Cincinnati Bullies Tennessee Middle School."  I am a lawyer, not a PR professional, but I think this was not the publicity UC was looking for. 

UC's actions also beg the question, why?  Why would an institution like UC take off after some school in the middle of nowhere?  Do they really think Cheatham's use of the Bearcat logo is going to cause any harm?

The answer is "no and yes."  The fundamental idea of trademark law is to avoid consumer confusion.  So, one brand can't use another's logo to take sales away from the established brand.  If I put detergent in an orange box and call it "Tidee" P&G has a legitimate beef.  But it's hard to see anyone intending to buy a UC Bearcat jersey and inadvertently buying Cheatham Middle School apparel by mistake.  So, UC isn't losing sales here. 

But there is a concept in trademark law called "dilution."  This is the law that guards against death by 1000 cuts.  The theory is that if enough people use a distinctive mark for their own purposes, the mark loses its distinctiveness and worse case, becomes generic.  Products like the "escalator" and "aspirin" experienced this fate.  UC's letter was more about dilution than anything else.  So, on a micro level the letter seems over the top. On a macro level, though, maybe not so much. 

Of course, whether UC was on firm legal footing is one thing.  The question I hope their legal team considered was whether the PR hit was worth it.  I don't like to second guess, but my gut feeling is it may have been better to let this one slide. 

And I snuck in references to three Barbra Streisand songs in this column.  Readers, let me know if you spotted all three!