Trade Marks and Language
29 Pages Posted: 30 Sep 2004
The traditional perception is that trade marks signal the origin of goods and services. The perception is challenged in this article. It is argued that trade marks are an important component of popular culture. Popular culture thrives in a fluid, unregulated environment. Yet the rhetoric of trade mark law is that the great open commons of the English language require the protective mantle of regulation: 'trade marks' should be narrowly defined and thresholds for registration set high in order that the language commons should remain in their pristine natural state; while at the other end infringement of a registered trade mark should be narrowly construed to avoid anything that would grant a full 'proprietary' right in a trade mark. The article explores the evolution of such ideas and their apparent hold still over the law. It is observed that there is a more sophisticated understanding now of the nature and function of language as a cultural device compared with that which existed at the time the British trade mark registration system was established. And it is suggested that trade marks that develop a cultural dimension should be granted rights accordingly. Regulation in the name of protecting the language commons should be kept to a minimum, targeting cases where trade mark owners seek to use their trade marks as instruments of censorship and control.
Keywords: trade marks, intellectual property, proprietary rights, language, English, language commons, popular culture, censorship
JEL Classification: K1, K10, K11, K19
Suggested Citation: Suggested Citation