ARIZONA — When he launched the ASU Underground, a student newspaper at Arizona State University, in January, Ben Powers wanted the paper to be an independent student voice on campus.
As far as ASU’s legal department is concerned, the Underground is not independent enough.
On Feb. 9, the Underground received a cease and desist letter from counsel representing the university, demanding that the two-month-old Underground remove the acronym “ASU” from its masthead and on its Web site.
“The ASU mark can only be used by or with the permission of the University,” the letter to the Underground read. “Your use is not to convey any geographic information, but to trade upon the recognition and goodwill in the ASU name and mark.”
The letter went on to say that continued use of the acronym by the Underground “will force the University to have to take appropriate action against you.”
In its third issue, published Wednesday, the editorial board of the Underground printed an editorial responding to the cease and desist order.
“The University could have contacted the Underground and offered to give or sell a license to use the acronym, but instead they have taken a stance against a student produced publication,” the editorial read.
Nancy Tribbensee, associate vice president of legal affairs at ASU, said the university is required under trademark law to guard the acronym from misuse and that its response was not related to the content of the Underground.
“We’re treating them like other entities, people, companies who infringe on our trademark,” Tribbensee said. “Our reaction to them has nothing to do with the fact that they’re a newspaper. We have no problem with them distributing on campus, we have no opinion about the content of their paper.”
In November 2004 the campus’ primary student newspaper, the State Press, printed a photo of a woman’s pierced nipple on the cover of its weekly magazine. Shortly after, ASU President Michael Crow and other top officials at the school indicated that the newspaper could lose its funding over the photo. After cries of censorship and the glare of a national media spotlight, the controversy died down in December without any of the State Press’ funding revoked.
The university is not unique in wanting to protect its trademark, Tribbensee said.
“If [the Underground] called themselves ‘the New York Times Underground,’ The New York Times would be mad at them,” she said.
But Powers said that is not a fair comparison.
“When the two entities or two businesses are producing the same type of product, that’s when you don’t have the right to [duplicate a trademark] because you’re in an area where the consumer could be confused and misled,” he said. “But with ASU as a university and the ASU Underground as a newspaper, there’s no confusion there.”
The Underground has a circulation among more than 10,000 students and faculty members on the ASU campus, Powers said. It is produced by students who are interested in writing and reporting but do not have an opportunity to do so at the State Press or at a professional newspaper in the Phoenix area, he added.
Tribbensee said the university “absolutely” wants to avoid a court battle with the Underground, so school officials are contacting Powers to set up a meeting.
“We would like to come up with some mutually agreeable solutions,” she said. “We wish them success in their effort.”
Powers said he has not been contacted by any ASU officials.
In 1998 Powers received the Scholastic Press Freedom award from the Student Press Law Center for his efforts to fight censorship at his Arizona high school. After the school-sponsored newspaper was censored by school officials, Powers launched an independent newspaper that published out of his home. School officials confiscated the first two issues, but backed down and allowed Powers to distribute the paper after he threatened legal action.
As for the Underground, Powers said the “tug of war” the paper is fighting with the university can only enhance the paper’s status on a campus of 60,000 students. And for now, Powers said, the paper is not taking the trademark issue as seriously as ASU seems to be.
“We changed the ‘ASU’ in the masthead to read ‘ASYou,'” Powers said. “Just to mess with them a little bit.”
—By Campbell Roth