How do people talk when they talk about trademarks? If trademarks have
become, as linguist Geoffrey Nunberg suggests, our “new global tongue,”
perhaps we should pay greater attention to the grammar we use when we
talk about them. We use “Coke” to refer to the Coca-Cola beverage in the
North, and “coke” to refer to any kind of soda in the South, yet we still
manage to get the drinks we desire. We use trademarks as verbs—we
“xerox” a document or “tivo” a television program—without losing sight
of 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 our
opinion of the products to which they relate. And yet, like overly academic
grammarians, courts and trademark owners often rely on linguistic
structures and rules in trademark law, telling consumers how to use and
pronounce the names of products and services with which they engage
and defining rights based on outmoded assumptions about conversations
around brands. Thus, as with the debate over the proper role of
dictionaries, trademark law might benefit from a more direct
consideration of its role in creating language—in other words, whether it
should be prescriptive (and define proper word usage) or descriptive (and
reflect common word usage). Incorporating linguistic theory on language
formation helps to begin this inquiry.