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IP Grammar . . . and Those Who Cringe About It

Posted in Mixed Bag of Nuts

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Last September, in my blog post entitled "What Does Trademarked Mean to You?," I wrote:

More than a few trademark types cringe when their clients or others say things like "let’s trademark it," "they didn’t trademark their logo," or "we don’t want to trademark this name," and, when they ask questions like "is it trademarked?" or "is that trademarked software?" or "did we ever trademark our logo?" or "should we be trademarking this packaging?"

Indeed, some have written: “’Trademark’ is not a verb. There is no such thing as ‘trademarking’ a word or phrase." Similar views are expressed here, here, and here.

Well, a couple more of the cringers have raised their hands.

Our good friend John Welch over at the TTABlog reported yesterday that he doesn’t like "seeing the word ‘trademark’ used as a verb," and he republished a recent article by Daniel Kegan entitled "The grammar of intellectual property: Copyright is a noun, trademark is an adjective," originally published by the Illinois State Bar Association, linked here. In his article, Mr. Kegan similarly writes: "Trademark is an adjective, not a verb."

Actually, according to the English dictionary, "trademark" is both a noun (you know, a person, place or thing?) and a verb (an action):

trade·mark

–noun

1.

any name, symbol, figure, letter, word, or mark adopted and used by a manufacturer or merchant in order to designate his or her goods and to distinguish them from those manufactured or sold by others. A trademark is a proprietary term that is usually registered with the Patent and Trademark Office to assure its exclusive use by its owner.
2.

a distinctive mark or feature particularly characteristic of or identified with a person or thing.
–verb (used with object)

3.

to stamp or otherwise place a trademark designation upon.
4.

to register the trademark of.

Indeed, even this quote from Mr. Kegan’s article confirms the proper use of "trademark" as a noun: "A trademark is obtained by use." This is a correct statement of fact and law, but the word "trademark" is clearly the object – the thing – of this sentence, i.e., the noun. Furthermore, with respect to the proper use of "trademark" as a verb, as I have previously written:

[T]he words "trademark," "trademarked," and "trademarking," are recognized words with established verb meanings that have formed part of the English language: "(1) To label (a product) with proprietary identification; and (2) to register (something) as a trademark." Moreover, the word "trademarked" has an established adjective meaning too: "labeled with proprietary (and legally registered) identification guaranteeing exclusive use; ‘trademarked goods’".

From my perspective, there is no need for cringing or even correction, just further inquiry into how the words "trademark," "trademarked," and "trademarking" are being used.

Given the various definitions for these words, the speaker might mean labeling a product or advertising material, utilizing or marking such materials with the appropriate trademark notice or symbol, registering a trademark or service mark, or perhaps, all of the above. Since the described actions (labeling and registering) are quite distinct, it becomes important to seek clarity on the speaker’s intended meaning.

So, again, really, what’s the big deal?

No need to cringe, in my humble opinion, this is just another example of where the use of a word in the English language begs for some follow-up questions by the listener to clarify the speaker’s intended meaning. Seems to me this potential for confusion is an opportunity for us trademark types to engage the speaker by asking some questions and then offering to explain and enlighten.

Where do you camp on this issue? Are you a cringer when it comes to IP grammar?

  • http://www.ipsojure.co.uk Peter Groves

    I spent so much time cringeing that I wrote a Dictionary of Intellectual Property (due out later this year), and enjoyed (among many things) exploring the differences between usage in England and the US. I cringe because lawyers should take care to be precise with the words they use, which is why I wrote a dictionary.
    You should tell us which dictionary you’re quoting (an American English dictionary, I am sure) – but like most dictionaries it’s just recording the way the word is used, not telling us what is correct. Thanks for the interesting post!

  • http://www.duetsblog.com/steve-baird.html Steve Baird

    Peter, thanks for sharing your insights and perspective.
    Good point about the dictionary source for the definition of “trademark” that I quoted. Based on your comment, I added a link to show it came from Dictionary.com. As I understand it, this particular definition is based on the Random House Dictionary.
    Who is to say in the world of business, marketing, and design that it is not “proper” to use “trademark” as a verb? Especially when there are multiple recognized meanings for the term in the English language.
    For another common example in our world, where different meanings can lead to potential confusion, “dilution” of a brand, routinely taught in business schools, has a very different definition from the very special meaning of “dilution” to legally-trained trademark types. I like this because it provides an opportunity for me to tell a story to someone who should be interested in the subject.
    From my perspective, just because a term is defined a certain way in a statute doesn’t make that the only meaning for the term — the public can and will use it with different meanings in mind, and these non-technical or non-legal meanings will be recorded in dictionaries.
    Thanks again for stopping by and sharing. We look forward to your forthcoming IP dictionary!

  • Dave Brezina

    I cringe because using ‘trademark’ as a verb usually arises in a context indicating the writer/speaker does not understand the difference between use, common law rights and registration. Since I’m usually reading/hearing it in a legal environment, the plain old dictionary definitions fall short. So, I suppose that fits the suggestion that the usage suggests follow up questions. By the way, I cringe when people use “velocity” when they mean “speed”, too. Technically correct, but usually in a context where both speed and direction are relevant, like wind affecting the sailing of a boat.

  • Steve Baird

    Dave, thanks for stopping by and offering your insights. I agree with you that the situation and context you describe provide great opportunities for follow-up questions. In addition, great opportunities for sharing your expertise is provided as well.
    I’m sure I learned about the difference between “velocity” and “speed” in high school physics class, but that knowledge is long gone for me, so thanks for the refresher course!
    Thanks for stopping by and sharing your comment.

  • http://ca.linkedin.com/in/lisebuisson Lise Buisson

    No cringing whatsover…. that’s the beauty of the English language, it’s so flexible: a noun today is a verb tomorrow!

  • http://nz.linkedin.com/pub/philip-mccabe/1/777/474 Philip McCabe

    I’m with Lise on this one. Purists may cringe but it’s what people actually say.