39 Pages Posted: 22 Jan 2011
Date Written: January, 20 2011
How do people talk when they talk about trademarks? If trademarks have become, as linguist Geoffrey Nunberg suggests, our "new global tongue," perhaps we should pay greater attention to the grammar we use when we talk about them. We use "Coke" to refer to the Coca-Cola beverage in the North, and "coke" to refer to any kind of soda in the South, yet we still manage to get the drinks we desire. We use trademarks as verbs - we "xerox" a document or "tivo" a television program - without losing sight of the fact that "Xerox" and "TiVo" are brands of particular products. We use trademarks as metaphor and as slang - "Kleenex," for example, has been used as street language for ecstasy - without changing our opinion of the products to which they relate. And yet, like overly academic grammarians, courts and trademark owners often rely on linguistic structures and rules in trademark law, telling consumers how to use and pronounce the names of products and services with which they engage and defining rights based on outmoded assumptions about conversations around brands. Thus, as with the debate over the proper role of dictionaries, trademark law might benefit from a more direct consideration of its role in creating language - in other words, whether it should be prescriptive (and define proper word usage) or descriptive (and reflect common word usage). Incorporating linguistic theory on language formation helps to begin this inquiry.
Keywords: trademark, linguistics, language, generic, reasonable person, grammar, prescriptivism, Xerox, Google
Suggested Citation: Suggested Citation
Heymann, Laura A., The Grammar of Trademarks (January, 20 2011). William & Mary Law School Research Paper No. 09-67; Lewis & Clark Law Review, Vol. 14, No. 4, 2010. Available at SSRN: https://ssrn.com/abstract=1744303