By Roger Shuy
Battles over wisdom, authority, and gear are usually fought whilst diversified fields handle an identical matters. This booklet takes a big step in the direction of exhibiting how fairly diverse fields, legislation and linguistics, can interact successfully in trademark instances. After providing the fundamentals of every box, readers are proven how linguistics used to be utilized in ten trademark proceedings, 5 of which had opposing linguists on both sides. ultimately, priceless feedback are given to either linguists and attorneys.
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Extra info for Linguistic Battles in Trademark Disputes
Some arguments exist over suggestive names, but if suggestivity can be shown to be present in the product’s title, such challenges usually fail. The preﬁx, “omni-,” for example, is deﬁned in most dictionaries as Latin-based, meaning “all,” found in such words as “omniscient,” “omnivorous,” and others. It has a nice ring to it and is a likely candidate for a trademark. This indeed happened. Omni Hotels registered the name as a trademark in 1984, having used it since 1975. But then along came the Omni Travel Agency in Virginia, and Omni Travel Inc.
Some relevant parts of the Lanham Act include the following passages: No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless . . (e) it consists of a mark which, (1) when applied to the goods of the applicant is merely descriptive or deceptively misdescriptive of them . . ” Rephrased positively, these words mean that a protected mark must be more than just a description of the contents of the product or service.
If the public understands that the term identiﬁes or describes the product itself rather than the source of the product, the mark is judged descriptive, not suggestive. Obviously, dictionaries and third party registrations of a mark are evidence of the meaning of a word. Despite these tests to distinguish descriptive from suggestive marks, there remains a large amount of what the courts have called “intuition” in the ultimate judgment. One judge lamented this fact and commented A Very Brief Introduction to Trademarks for Linguists 39 that it would be better to have a logical analysis susceptible of articulation.
Linguistic Battles in Trademark Disputes by Roger Shuy