Linguistic Battles in Trademark Disputes by Roger Shuy

By Roger Shuy

Battles over wisdom, authority, and tool are frequently fought while diversified fields handle a similar matters. This publication takes a huge step in the direction of displaying how really various fields, legislation and linguistics, can interact successfully in trademark situations. After offering the fundamentals of every box, readers are proven how linguistics was once utilized in ten trademark complaints, 5 of which had opposing linguists on either side. ultimately, invaluable feedback are given to either linguists and legal professionals.

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In the US, decisions about infringement are based on whether or not the alleged offending party’s usage of the mark will lead to confusion, mistake or deception. In contrast, the UK Trade Marks Act of 1994 considers infringement to be based on identical marks used on identical goods or services, on identical marks used on similar goods or services resulting in a likelihood of consumer confusion or association with that trademark, and on identical or similar marks used on non-similar goods and services when their use would take unfair advantage of or be detrimental to the character or reputation of the mark.

For example, a manufacturer making a product named Chap Stick cannot prevent other manufacturers from producing a product by the same name, since Chap Stick is said to merely describe a stick that is used to prevent chapping and chapping is a term used primarily in relationship to lips. The name is said merely to describe the function of the product. The Lanham Act continues: (f) . . nothing herein shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant’s goods in commerce .

For this reason in court testimony I have tended to speak of “meaning” as much as possible and have tried to avoid the otherwise perfectly respectable term “semantics,” even though that is exactly what the study of meaning is. If meaning refers to anything, it signifies that words and expressions mean something as they are used in a certain way in a text. To be sure, we can define the meaning of words individually, using dictionaries, other references, and citations files that we develop on our own, but such a definition may or may not parallel the meaning found in an actual context.

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