University of Idaho officials didn’t quite tell lawmakers or the public the whole story about the decision to change the name of the school's new nonprofit organization, which plans to buy the University of Phoenix. U of I President Scott Green and general counsel Kent Nelson made it sound as if the school had just “learned” that there was already a “NewU Inc.” in existence. It’s a little more than that.
NewU University is a school in Washington, D.C. Hearing that the University of Idaho planned to use its name, NewU threatened the University of Idaho with a claim of trademark infringement and asked for financial compensation. The law firm Holland & Knight said in a May 31 letter that the U of I needed to make a $25,000 payment “for the reputational and financial loss resulting from the confusion you have caused in the marketplace through today; and make additional payments to our client of $25,000 per week until all improper use of the NewU name and mark is completely discontinued,” lawyer Thomas W. Burke wrote.
He explained, “Given that at this current time of year when so many prospective high school juniors and seniors, their parents, school counselors, and other educators, college advisors, and others are researching and exploring college options, combined with the fact that in mere days after your announcement most of the Google News top results on the search term ‘NewU’ are dominated by links and references to the University of Idaho and the University of Phoenix, we believe that confusion in the marketplace has occurred and will continue to take place until this situation is remedied.”
Brad Frazer, representing the U of I via the Hawley Troxell law firm, replied on June 6, blaming “unaffiliated third-party press outlets” for naming NewU and said, “the fact the Google algorithm found and served up these unaffiliated news reports is irrelevant.”
“As you know, without trademark use, no actionable trademark infringement lies. Thus absent evidence that the University committed trademark infringement by appropriating and using ‘NewU’ in a source-identifying manner, in commerce, to advertise and sell related goods or services relative to your client’s offerings, we will consider this matter closed."
Frazer added, “And, even though the University has no legal obligation to do so and its actions do not constitute trademark infringement, the University is in the process of changing NewU’s entity name to something else, simply as an olive branch to your client, as a fellow educational Institution.”
Burke, NewU’s lawyer, replied on June 9, saying,
“Contrary to your assertions, your client has used the NewU mark in public and as a source identifier. The Idaho Board of Education, the controlling entity/Board of Regents of the University of Idaho, issued a press release on May 18, 2023 stating the University of Idaho created a new corporation called NewU. There were 5 references to NewU, Inc. in that press release. Numerous media, educators, and regulators saw and referenced or otherwise used that press release in their mentions of NewU. None of these articles or third parties made a distinction between your client and our established University in Washington, D.C."
“Our client is cautiously optimistic about the actions you indicated are already underway to change the name of NewU, Inc., but we need a tangible timeline and a better understanding of your steps to date and planned corrective actions through completion of the name change,” Burke said, adding that, “In lieu of payment for damages, our client is open to pursue certain collaboration projects which would require both parties to make only an immaterial incremental investment, if any, yet may yield benefits to all.”
Frazer sent an email to Brooke on June 16, saying that the State Board of Education planned to meet on June 22 to consider changing the name of the nonprofit, and sent a follow-up email on Thursday, after the board’s decision to change the nonprofit’s name to Four Three Education, Inc., calling the issue closed.
The exchange of letters and emails between lawyers is less interesting than the fact that no state officials, or members of the public, were ever made even slightly aware of NewU's complaint. Previous descriptions made it sound like the U of I made a discovery, the existence of another user of the name, and largely an innocuous one. It makes one wonder what else the University of Idaho is glossing over, relative to its University of Phoenix purchase.
