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By Doha Madani
A national student organization on Wednesday claimed that the University of California Los Angeles is attempting to use trademark law to chill the free speech rights of students.
The university sent a cease-and-desist letter on October 31 to the National Students for Justice in Palestine (NSJP) over a promotional flyer the organization used to advertise its national conference, which will be held at the school beginning on November 16.
The flyer included a bear wearing a keffiyeh scarf reaching up toward a kite colored to resemble the Palestinian flag and three doves.
UCLA, a public university, demanded in its letter that the organization not use renditions of the Bruin Bear, its mascot, in association with the Palestinian flag, which some interpret as an endorsement of violence against Israel.
“A review of your website discloses use of the ‘UCLA’ name, and is an attempt to associate NSJP with the mascot of the Bruin Bear in a logo/digital poster for the national conference,” the letter states. “Taken as a whole, theses uses claim, suggest, or imply an affiliation with or an endorsement by UCLA of NSJP and/or its national conference, which is simply incorrect.”
NSJP, which has a student chapter at the school, called UCLA’s commentary on its design a “racist and gross mischaracterization” of the kite. The group said the kite is a symbol of freedom for Palestinians and a common past time for children in Gaza. NSJP also denied using the specific UCLA Bruin Bear in its artwork.
“In accordance with our yearly practice, we adopted a region-specific design for our 2018 conference,” the group said in a statement Wednesday. “We chose to honor years of West Coast advocacy efforts calling for respect for the inalienable rights of the Palestinian people.”
The grizzly bear was designated California’s state animal in 1953 and is prominently displayed on its state flag.
Intellectual property expert Michael N. Cohen, owner of Cohen IP Law Group, told NBC News on Wednesday that the legal standard for trademark infringement is the likelihood of confusion in the mind of the consumer. And use of the university’s name is restricted so that it won’t imply the school is affiliated with, or is endorsed, favored, or supported by any groups without permission.
“So even if the [images] — if you do a side-by-side analysis — look different the true question is if it will cause confusion with the mind of consumers in the regard to affiliation, endorsement or support,” Cohen said.
Cohen also said that the argument that NSJP was using the state as inspiration does not protect it from the law because of how strongly UCLA is connected in people’s mind with its bear mascot.
“That’s a possibility of a defense, which if they haven’t made already they can likely raise, but the counter argument would be that because UCLA is hosting the event that the association will be stronger with the UCLA bear rather than the state of California,” Cohen said.
The ACLU of Southern California sent UCLA a letter alleging the university failed to enforce similar rules regarding the use of its name with past student events and that the selective enforcement of the California state rule regarding its name was being used to chill the students free speech.
“Your emphasis on how ‘some’ might perceive symbols of Palestinian freedom indicates that the real reason for the University’s unconstitutional censorship of SJP is the group’s support for Palestinian rights,” the ACLU letter states. “Your sensationalist mischaracterization of SJP’s viewpoint is further evidence of viewpoint discrimination.”
Tod M. Tamberg, a spokesman for UCLA told NBC News in an email on Wednesday “it was never about the bear all by itself” and that it appreciated the groups alteration to remove the UCLA name. The university, which threatened to cancel the conference, also said that the event would go on as scheduled.
“As you may have heard, some members of the Jewish community have been sharply critical of upcoming conference, demanding that UCLA move to cancel it,” the school said in statement provided by Tamberg. “As a public university, UCLA is legally bound to comply with the First Amendment, which protects everyone’s right to express their views, even those that are offensive and hateful or that the university opposes.”
Andrew Blankstein contributed.