The Grammar of Trademarks

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14 Lewis & Clark Law Review 1313-1350 (2010)

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Heymann, Laura A.
Linguistic Theory; Trademarks; Intellectual Property Law
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article description
How do people talk when they talk about trademarks? If trademarks havebecome, as linguist Geoffrey Nunberg suggests, our “new global tongue,”perhaps we should pay greater attention to the grammar we use when wetalk about them. We use “Coke” to refer to the Coca-Cola beverage in theNorth, and “coke” to refer to any kind of soda in the South, yet we stillmanage to get the drinks we desire. We use trademarks as verbs—we“xerox” a document or “tivo” a television program—without losing sightof 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 ouropinion of the products to which they relate. And yet, like overly academicgrammarians, courts and trademark owners often rely on linguisticstructures and rules in trademark law, telling consumers how to use andpronounce the names of products and services with which they engageand defining rights based on outmoded assumptions about conversationsaround brands. Thus, as with the debate over the proper role ofdictionaries, trademark law might benefit from a more directconsideration of its role in creating language—in other words, whether itshould be prescriptive (and define proper word usage) or descriptive (andreflect common word usage). Incorporating linguistic theory on languageformation helps to begin this inquiry.