Linguistic analysis in trade mark law: current approaches and new challenges

Durant, Alan ORCID: https://orcid.org/0000-0001-5208-4718 and Davis, Jennifer (2018) Linguistic analysis in trade mark law: current approaches and new challenges. In: Handbook of Communication in the Legal Sphere. Visconti, Jacqueline, ed. Handbooks of Applied Linguistics [HAL] (14) . Walter de Gruyter, Berlin, pp. 287-320. ISBN 9781614516699, e-ISBN 9781614514664, e-ISBN 9781501501104, pbk-ISBN 9781501510922. [Book Section] (doi:10.1515/9781614514664-014)

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Abstract

Trade mark law regulates a field of commercially and culturally important language behaviour by means of a conceptual framework that differs significantly from any corresponding terminology or overall approach in linguistics or related fields. The chapter describes the interaction that has taken place between law and linguistics on this subject. It begins with a summary of the main legal measures governing verbal signs used as marks, taking European Union trade mark law as the main point of reference but introducing US law as appropriate. The chapter then describes how courts address language-related questions, and asks how compatible the understanding of communication relied on in trade mark law is with accounts developed in other fields. Highlighting both commonality and contrast, the authors examine the contribution made to trade mark law by linguists in two major traditions: an applied linguistic tradition of expert evidence; and an interdisciplinary tradition of efforts to understand trade marks in semiotic terms. Both traditions have been mainly concerned with US trade mark law. The chapter argues, however, that although it is largely US scholars who have paid most attention to linguistic issues in trade mark law, the insights and unresolved questions raised can also illuminate approaches taken by European courts. The chapter concludes by asking how research might be developed further in collaboration between lawyers and linguists.

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