On Establishing Meaning

Words can vary substantially in their meaning and reception, with trademark law being a principal area of law concerned with the meaning and reception of language in the marketplace. Other areas of law, however, historically recognize distinctions that may arise between the ways the same word or phrase can be interpreted by different communities of speakers in different contexts. As Alan Durant notes, “in some [defamation] cases, in addition to statements which are capable of being defamatory ‘on their face’ (i.e. in respect to their natural and ordinary meaning), the law recognizes there may be a potentially defamatory meaning below the surface meaning, namely ‘innuendo meaning’. This arises in cases where the words themselves are not defamatory, but they invite an obvious and publicly available inference that yields a defamatory meaning (known as ‘false innuendo’). Alternatively, there may be knowledge known only to a subsection of the community that renders an otherwise harmless statement defamatory (‘true innuendo’). In such cases, the legal fiction of the ‘ordinary reader’ or addressee is modified” (Durant 1996 as cited by Hutton 2009, p. 170). The need by courts to establish the ‘ordinary reader’ in cases of libel can be equivocated with the need by courts in trademark law to establish an ‘ordinary consumer’ who will be dealt with in the context of a particular case. Similarly, within the realm of trademark law, it is possible for courts and linguists to find certain marks to be confusing or misleading ‘on their face’, accepting the most sweeping and universal interpretations of a particular word or phrase, if they can be proved as such. Other words, despite their original, intended, or ‘natural’ meanings may have secondary or intuitive meaning. Beyond these two situations, it is not difficult to also conceive of: (a) a speech community; (b) a geo-political space; or (c) a market or communicational context whose membership, affiliation with, residence, or experience within invites further inference, nuance, and impressions of a word or phrase that affects meaning.

To further relate to instances of libel as it might pertain to trademark law, and to cite the opinion of Lord Diplock in the case Slim v Daily Telegraph Ltd (1968) in English law, Lord Diplock noted that an ordinary letter, in the instance of this case, that should have taken no more than sixty seconds to read was subject to in-depth linguistic examination by three judges and four counsel. Diplock noted, “If this protracted exercise in logical positivism has resulted in our reaching a conclusion as to the meaning of either letter different from the first impression which we formed on reading it, the conclusion reached is unlikely to reflect the impression of the plaintiffs’ character or conduct which was actually formed by those who read the letters in their morning newspaper” (cited by Hutton 2009, p. 170). Although a separate body of law, it is important to recognize that law involves the protracted and minute examination of acts and instances that in real-time may only constitute a matter (in trademark law) of milliseconds. While pouring over the definition and likely interpretation of a mark by a consumer in the supermarket may be useful in some instances, it also does not reflect the realities of how that mark was likely encountered by the consumer, or the subsequent cognitive processes that took place to establish meaning. Context and the nature of a particular product or class of products is important to understand in all cases because studies show consumer involvement with products differs based on the interplay of a variety of factors. According to Dr. Lars Perner, Assistant Professor of Clinical Marketing at the Marshall School of Business at the University of Southern California, “consumer involvement will tend to vary dramatically depending on the type of product. In general, consumer involvement will be higher for products that are expensive or are highly significant in the consumer life in some other way” (http://www.consumerpsychologist.com/). With regards to the construction of meaning, a consumer taking a passing glance at a product may not stop to understand or tease out the full series of associations that come with the purchase of a particular product, but for a more economically significant or otherwise personally substantial purchase, a consumer may exercise greater time to think about a mark, translate a mark (if in a foreign language), or consider attributes imputed to them by the consumption of a particular product or services.

Lord Diplock continued by asserting “everyone outside a court of law recognizes that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey” (Hutton 171).

A helpful classification for meaning is proposed by Jason Harkness. Meaning for a word or phrase can be divided thus into ‘denotative’ and ‘connotative’, with denotative meaning referring to the core of “settled, shared, ‘neutral’ meaning, for example the intersection between two words such as ‘clever’ and ‘cunning’. Connotations are meanings that ‘colour’ or supply an emotional or judgemental quality in addition to that neutral meaning” (Hutton 171). For many cases, where possible, market surveys assessing how a particular phrase is understood are useful and accepted as evidence in trademark disputes.

The main realm of difficulty arises from the fact that within law, specifically trademark law, language is required to be a stable or static point of reference within the contexts of individual cases, such that the basis for a decision in a particular case can be justified and generally agreed upon. Language, however, is constantly fluid. To that end, “much research on language and the law is concerned with how the law requires determinate semantic definitions and the means by which the law establishes these definitions” (Davis 255). When particular language is analyzed by the law, even ‘plain language’, the slow motion, hypersensitivity of the courts and their analysis may serve to only further exacerbate the problems that confront our understanding of language and the realistic circumstances of its encounter by a consumer in the market. Frequently in law we also see issues where interpretations of language and meaning are further wrenched from their context, or purposefully downplayed, in order to serve the purposes of either the prosecution or the defence.

For Daniel Davis, “trademark law is worthy of attention because it not only requires contingent determinacy of meaning, but also requires a contingent determinacy of form…the means by which trademark law establishes determinacy of form…points to assumptions about the nature of language that are radically different from those of orthodox twentieth century linguistics, particularly in connection with the distinction between language and the use of language” (Davis 255). Trademark law and its historic practice emphasize that provisional determinacy of form and meaning cannot reside in ‘community standards’, nor in ‘language structures’, which linguists are used to and concerned with, but in the communicational context faced by the consumer in question, in the specific market in question, and the transaction that takes place therein. To this end, certain aspects of linguistic theory, particularly in the form of expert linguistic testimony in trademark law cases, may misinform courts more than they help[1] with regards to determining meaning. In the courtroom, litigants are likely to be concerned with all aspects of communicative context, and in some instances imperfect memory or recollection of the meanings, pronunciations, and forms of words may need to be considered. For Davis, “there is nothing that a language expert, whose scientific basis is predicated on an abstract and de-contextualized language system, can add to this. Even a sociolinguist’s expertise in language variation by definition ignores many aspects of the communicative situation” (Davis 259).

This potential dichotomy between both the approaches and understandings of linguists and the courts, with each thinking themselves experts in language and meaning, renders trademark law, especially at the challenge stage, ripe with causes célèbres in the courtroom. “The two most salient characteristics of trademark law from a general linguistic perspective are, first, the need to establish or assume formal similarity between particular instances of communicative behaviour, and second, the way in which language is conceptualized as a social institution on par with other social institutions, and subject to definition through use. Thus the distinction between language structure and use, or competence and performance, which is essential to the way in which twentieth century linguistics identifies and idealizes its object of study, is not operative within twentieth century trademark law” (Davis 255).

For instances of determining the meaning and connotation of foreign words, there is the added burden of translation, lack thereof, or improper understanding of foreign words generally accepted meanings. Because trademark law asserts that provisional determinacy must, of necessity (as it is the most accurate reflection of the market situation), be at least mostly contingent on communicational context, other factors such as trademark reputation might come into play. Reputation of a trademark, or even the physical environment where a mark is encountered, may influence how a consumer associates a mark with a particular class of goods, or a particular quality of that class. The environment of encountering a foreign language mark in a high-end boutique shop versus at the stall of a street vender may influence the connotations that the consumer has of the mark (thus influencing meaning), even if the denotative meaning of the mark remains static according to a linguist. Davis supports this understanding by noting, “not only is the form of the sign contextually contingent, but so too is the meaning contextually contingent. The sign has no existence outside of use in a context, and the similarity of two signs depends not only on their being confused, but on their being confused in the same context” (Davis 257). Because registration in the United States is a nationwide presumption of validity for a particular mark, the burden is all the higher for courts because it may be impossible to control for all possible contexts in which a mark might occur.

Considering the “semiotic conditions of the marketplace” (Davis 259) when assessing how trademarks will be interpreted is critical. “Although the possibility or non-possibility of distinction and subsequent degree of confusion must in some way depend on some aspect of the trademarks under discussion, it will be impossible to predict which aspect or aspects of the trademarks and get-up will be relevant to the market context, which is to say, the analysis of relevant aspects of communicative behaviour cannot be undertaken apart from the communicative context” (Davis 259). Already wrought with subjectivity and misunderstanding, and traditionally physical, context and the market are increasingly shifting into virtual space. With this shift, the difficulty of establishing communicative context may be even more burdensome and indeterminate for courts as well as litigants. Methods that may have worked for the exegesis of trademarks, their meanings, and their reception historically may now find themselves anachronistic for the purposes of contemporary courts.

“Observing the law deal with language, interpretation and meaning can be compared to watching a social exchange in slow motion. As with the replaying of a key sporting event, we can observe the process many times from a number of different angles or points of view, but this does not guarantee that all observers will agree on what they are seeing” (Hutton 163). The importance of establishing the imperfection associated with determining meaning and definition by courts in relation to trademarks (and in other types of law, such as defamation) is to reaffirm that, “trademark law decides difficult and economically significant issues” (Davis 261), whilst acknowledging that, unlike in other areas of the law, it is forced to so on the grounds of incompletely determinate meanings and contextual assumptions and generalities.

One area of trademark law fraught with indeterminate meaning is the realm of foreign language marks in the American marketplace. One area where this manifests itself frequently, especially amongst those less fluent in a language, is the occurrence of calque, which are literal translations of one word into another language that are often complex expressions or words used figuratively. In an article in Meta: Translators’ Journal, entitled, “The Occurrence of Calque in Translation Scripts,” author Penelope Sewell offers the French lune de miel and grate-ciel as being calqued on the English “honeymoon” and “sky-scraper.” Sewell cites A. Duval (1990: 27-33) as mentioning the “limitations of bilingual dictionaries which function on word-for-word equivalents” whereas, submits, “translators need to be aware of words in context and usage” (Sewell 608). People (or consumers in the marketplace) translating words may run into instances of cognates which can serve as ‘true friends’ but frequently serve as ‘false friends’, or “words which look the same, or very similar, in two languages, but whose meanings are different. The unwary translator who assumes similarity of form equals similarity of meaning and who unthinkingly uses the treacherous item in his/her translation thus falls into a classic trap” (Sewell 608). The authors Howard Evans, Philip Thody, and Gwilym Rees published a book in 1985 entitled Mistakable French: A dictionary of words & phrases easily confused with the sole purpose of isolating frequently mistranslated terms between the two languages. Sewell believes that calques result of the rapid movement between source text and target text (or source language and target language). This surface translation differs from the more preferred translation process of paraphrasing source text and analyzing before creating target wording. Surface translation, where meaning is not necessarily established before a translation has occurred, happen frequently to those under pressure, in a hurry, or not paying attention. Sewell, a French professor, in a study of a class of twenty-six students in the French Department of Birkbeck College at the University of London, found that when translating a piece of work from French to English and, conversely, from English to French that only 26 calques were made into French (on 9 different items), whereas 132 were made into English (on 18 different items). Based on the demographic makeup of the class, with a number of students not speaking English as their first language, Sewell concluded that “students are far more likely to calque when translating into English” (Sewell 614), regardless of whether or not their first language was French, an African language, Creole, or German. What’s further, Sewell determined that “it seems that the more proficient speakers of French are more likely to calque than the less proficient ones” (Sewell 614). In her sample, students who had achieved above-average scores in her classes were more prone to calque than the weaker students. The most calques into English, then, were from “those with a high degree of bilingualism based on communicative needs. This is, they had learned their French in a French environment” (Sewell 614).

Sewell’s findings, though limited, nevertheless raise interesting questions about how students translate, and the nature of their linguistic awareness as highly proficient users of two languages. Such observations construct an awareness that even for those American consumers knowledgeable in a particular foreign language, attempts to create definition or meaning can become lost in translation through the misunderstanding of false friends and cognates, as well as the creation of calques, which, while creating a word-for-word transliteration in the mind, may nevertheless not capture the commonly ascribed semantic thrust of a word or phrase.

It is through a comprehensive evaluation of meaning assignment, denotative versus connotative meaning, translation meaning, and the frequently cacophonous approaches employed and favoured by courts, linguists, and consumers, that it is possible to appreciate with acuteness the misunderstanding and dissent that can arise in the courts as they attempt to arrive at the ‘true meaning’ of words and phrases.

Works Cited:

Davis, D (1996), “Trade Mark Law: Linguistic Issues.” Language & Communication 16(3): 255-62.

Durant, Alan (1996), ‘Allusions and other “innuendo meanings” in libel accusations: the value of semantic and pragmatic evidence’, Forensic Linguistics 3(2): 195-210.

Harkness, Jason (1998), ‘A linguistic inspection of the law of defamation’, Auckland University Law Review 8: 653-84.

Hutton, Christopher (2009). Language, Meaning and the Law. Edinburgh: Edinburgh UP.

Mitchell, Paul (2005), The Making of the Modern Law of Defamation, Oxford: Hart.

Perner, Lars. Consumer Behavior: The Psychology of Marketing. Web. 05 Dec. 2010. <http://www.consumerpsychologist.com/>.

Sewell, Penelope (2001), ‘The Occurrence of Calque in Translation Scripts’, Meta: Translators’ Journal 46(3): 607-615.

[1] “Even when linguistic form is potentially relevant, there is a substantial body of opinion which holds that a careful and expert analysis of this form is misleading, as again, it more than likely does not reflect market conditions” (Davis 259).