What Is the Meaning of a Trademark?

Research Handbook on Trademark Law Reform, (Graeme B. Dinwoodie & Mark D. Janis eds., Edgar Elgar Press 2021)

25 Pages Posted: 18 Mar 2021 Last revised: 2 May 2023

Abstract

Trademark law in the United States is ostensibly about the regulation of proper names—or symbols that function as proper names—but it seems to take little account of naming theory as an intentional matter. In truth, trademark doctrine embodies, without saying so directly, the scholarly conversation about how to characterize a proper name. In that conversation, some contend that a name’s function as a name depends only on a recognized connection between the name and its referent, while others contend that a name’s function relies in some manner on descriptive qualities that may be associated with the bearer of the name—in other words, that a name “means” its description. In other words, to take a brief example, “George Washington” could be deemed to function as a name simply because it denotes a particular individual in a particular context; alternatively, its function as a name might depend on whether that individual embodies certain characteristics (such as being the first president of the United States). For trademarks, the comparable distinction is the difference between saying that trademarks, qua trademarks, communicate only “this is the product you want” and saying that they also necessarily communicate “here is some information about the kind of product it is.” Determining which of these should inform our understanding of trademark function can also inform our understanding of the proper scope of trademark law.

In this chapter, I suggest that trademark validity should depend only on whether consumers understand a trademark to be functioning as a name and not on any other kind of communication that might accompany the mark, even though it is the case that trademarks do sometimes communicate non-source-identifying messages. That is, despite the canard that characterizes trademarks as adjectives modifying common nouns (as in “Ford automobile”), trademark doctrine should recognize what most speakers do: that trademarks are proper names, that recognizing their referent often depends on context, and that they can be used in metaphorical and other ways with no loss of their ability to serve as referents. In short, trademarks, like proper names, simply denote—they have no meaning or truth value. Recognizing this might enable us to reevaluate the scope of a number of validity doctrines in trademark law.

Keywords: trademark, naming, Kripke

Suggested Citation

Heymann, Laura A., What Is the Meaning of a Trademark?. Research Handbook on Trademark Law Reform, (Graeme B. Dinwoodie & Mark D. Janis eds., Edgar Elgar Press 2021), Available at SSRN: https://ssrn.com/abstract=3804808

Laura A. Heymann (Contact Author)

William & Mary Law School ( email )

613 South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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