The Liberal Plea for Courts Regarding Trademarks

It may be difficult for governments and businesses, in an increasingly globalized society, to completely control the life, perception, and reception of trademarks in the marketplace. Regardless of whether or not the public sphere is becoming increasingly commodified, these commodities can nevertheless be bought and sold, controlled or manipulated through marketing, and hold value for the business they belong to. The stronger the particular commodity or mark in the marketplace, the more power its handler likely has to execute branding strategies that strictly control a trademarks reception. The worst thing that can probably happen (in the financial sense) for a company is to have a trademark that becomes so diluted in the market that it undergoes death through genericide and can no longer be protected as it has entered the public sphere (as in the Aspirin case).

These instances of genericide – for products such as Aspirin, Roller Blades, and Kleenex, to name a few – support that at the end of the day it is in a company’s best interest to keep a trademark connected to a physical commodity, rather than allow them to become “potent, autonomous, if contested signs” (Hutton 136) that no longer serve as “referential marks which serve primarily to designate a producer” (Hutton 136). If the purpose of trademark law is to thus protect the interests of producers as well as consumers in the marketplace from confusion or deception, then it must be the role of government to apply a definition of ‘commercial use’ or ‘use in the trademark sense’ (Hutton 136) which best balances and protects trademark integrity within a capitalist system (hyper-commodified or not) and protects individuals from undue confusion or deception in their consumerism.

The liberal ideal, that:

“in relation to the language culture of a particular polity would be that words and formulations, and therefore associated ideas, should circulate as freely as possible. In metaphorical terms, a language should be an open-access space or ‘commons’ where no single participant or group of participants has a monopoly and there is no central planning agency or centralized oversight” (Hutton 118),

sounds nice in theory but cannot possibly be feasible in the pragmatic sense. Trademarks are a necessary evil that allows for economic growth at the expense, it might seem, of freedom of language, but they also protect consumers with regards to the language they encounter in the marketplace. To the extent that “liberal and libertarian understandings of free speech strongly emphasize the overall positive value to the community of language users of minimal interference in the circulation of words and ideas” (Hutton 118), can be ensured I believe it is. If we begin to change and challenge the very definition of trademarks, treating them not as:

“A trademark is a distinctive sign which associates a product or service with the business that produces it. The law regards trademarks primarily as a sign indicating the commercial origin of the product (the ‘badge of origin’ function) and seeks to protect the ‘referential link’ between the sign, the product and the business and thereby prevent ‘referential confusion’” (Hutton 121),

but as something different, then we are getting away from the point. If a symbol is not connected or does not index a particular commodity, then it ought not be treated as a trademark able to be protected (even if it was arbitrarily conceived), because trademarks are meant to index products, and referential confusion and deception can not be shown to have an effect on the consumer if the consumer is not directly purchasing or benefiting from a particular commodity. Governments ought to, therefore, have narrow definitions of what constitutes use in the trademark sense because if a trademark has indeed become a “potent, autonomous, if contested sign” (Hutton 136), then I would argue it is not even a trademark whatsoever (it used to be a trademark and is now merely a fixture of the public sphere having undergone extreme dilution) and should suffer loss of protection.

If trademark law is to be considered “in effect a form of legally operational notice of linguistic change or innovation, and the law relies on both formal registration and the recognition of the courts that social practices may give rise to a legal right” (Hutton 121), then linguists ought to support the “liberal plea” (Hutton 136) because it allows for the most organic understanding of language. Linguistics, as well as judges, “have generally recognized the common ownership of the English language by its speakers” (Hutton 123), and:

“A trademark which circulates in contexts where it is no longer serving as a strict ‘badge of origin’ may lose its legal protection and become a generic term. Thus in Bayer Co. v United Drug Co. (1921), the invented word or ‘artificial trade mark’, Aspirin, was deemed to have lost its legally enforced monopoly…Another way of understanding this is that a trademark name, by virtue of its association with a type of product rather than a particular producer of the product, becomes a descriptive label, that is, it joins the mainstream of the English language and thus can no longer serve to distinguish one product from another. The greater the success of the product associated with the trademark, and the greater the market recognition of the trademark, the greater the vigilance required to protect it” (Hutton 125).

Linguists should support narrow readings of use in the commercial sense because, as Shuy suggests, trademark law can be used as a tool (even if subconscious) to further sociolinguistic inequalities. He is “accusing law in effect of employing legal prohibitions to reinforce its control over language and over the hierarchy of value associated with ‘high’ and ‘low’ language varieties” (Hutton 125). The worry that certain wealthier companies can buy language rights is always a threat, but if we have stronger legislation and narrow readings of commercial usage then in situations such as Ford Motor v 2600 (2001) corporations are forbidden from extending their control unnecessarily over the public domain. The web address “fuckgeneralmotors.com” that automatically directed users to the Ford website, even though potentially disparaging to the GM trademark, was deemed not a commercial use and was therefore not grounds for a lawsuit. Richardson’s argument that taking a narrow definition of trademarks is naïve, is more idealist than pragmatic linguistically, and that trademarks are creative usages of language which deserve the same form of protection afforded other creative originalities (Hutton 135) I believe is nevertheless ignorant. I would argue that the equivocation between trademarks simply because they are a form of intellectual property protection with copyrights and patents is narrow-minded. The invention of the segue is not something that can be argued to logically belong to the commons over an individual, nor are entire sequences of novels, but there is something different about basic words, phrases, or language, which requires perhaps a different burden of proof.

Richardson is correct and Hutton asserts that, “trademarks play a central role in defining corporate personality through image-manipulation or ‘branding’” (Hutton 121), this is uncontested. However, we get into dangerous territory when we begin to legislate for language that is not serving a specific purpose of generating goodwill for a product or indexing a specific referential link between a word or phrase with a specific product and that products producer. “All credit for meaning attributed to an otherwise ‘meaningless’ word must logically accrue to the company which has created that meaning in the form of a referential link to a product. Close to this ideal is the use of a word ‘inappropriate for the goods concerned’, such as ‘North Pole’ for bananas (British Sugar v James Robertson 1996). Since there is no pre-existing conceptual link between the place-name and the fruit, then credit for any such link which has been established in relation to a product must accrue to the activities of the trader in the market place, and therefore there has bee no ‘freeloading’ on the semantic resources of the language itself” (Hutton 122). In this instance, North Pole ought to only be protected as it applies to the consumption of a particular brand of bananas. If, in the future or through North Pole becoming a mega-brand as Klein indicates, North Pole takes on some highly theoretical abstract place in peoples minds that is no longer associated with bananas or their consumption, then I would say that’s great but North Pole’s protection should also be revoked since it was granted on that original contingency.

Markets and the law, especially with regards to language, are never going to be an ideal place, but it should be the position of the linguist to fight as best they can for linguistic freedom and equity as it pertains to producers, consumers, and the commodities that are exchanged. It should also be the policy of the courts, if language is indeed so contentious and its ‘ownership’ loaded with ethical freight, to take a narrow reading of use in the trademark sense or commercial use so that language remains as un-tethered as possible while still allowing for capitalism to thrive. Trademark law “offers consumers a guarantee that the products they buy are genuine” (Hutton 128), and all academic theorizing or externalities aside, when a trademark is failing to do this explicitly and courts are failing to adhere to this standard they are overstepping their current stated purpose and purview and it is not the obligation, place, or right of the state to legislate to protect them and prohibit their usage or manipulation by others.

Comments

  1. john troll says:

    I respond as someone who supports a liberal perspective. But your linguistic analyis ignores the current reality of the uber consumer marketplace.

    What does Ralph Lauren signify? Shirts? Dresses? Paint? Pillows? Eywear?

    What does Nike signify? Glasses? Golf shirts? Baseball gloves? Sandal?

    What does Harley-Davidson signify? Barbecue grills? Refrigerators? Again eyeglasses?

    I would argue that many of the most powerful brands CANNOT be associated with any particluar product; rather the brand IS the product. One is not simply buying a commodity one is buying an aura, a lifestyle, a persona. In an America that goes bowling alone we are so hungry to identify wit something larger than ourselves that satisfy that hunger with labels. The underlying products are indeed commodified but we ignore that to find some external means of enhancing our self esteem