Language as a Public Good Under Threat:

The Private Ownership of Brand Names

by Michael H. Goldhaber

Institute for the Study of Social Change
University of California, Berkeley
July, 1999
(© Michael H. Goldhaber, 1999)

ABSTRACT Little seems as obvious, to the point of hardly needing stating, as the thought
that language is intrinsically a public good. Yet today more and more of common
meanings have to do with what in fact are trademarked terms, that is part of the
private, permanent, intellectual property of large corporations, who are all the
more eager to protect their new turf becuase it has become essential to their
profitablility. Inevitably, this threatens the common ownership of semantic space
and therefore the possiblity of discourse itself.

[A slightly different version of this paper appears in NOT FOR SALE:In Defense of Public Goods, Anatole Anton, Milton Fisk and Nancy Holmstrom, Eds. , Westview Press, Boulder, CO, 2000.]

"Of all the laws that bind us to the past, the names of things are the stubbornest."
                                                                                    -Robert Haas, Poet Laureate of the United States, 1996-97

Market-oriented economists, among others, recognize a class of goods called public goods, by which they mean those goods that either cannot usefully be owned, or if owned must be subject to public control for even economic life to be able to proceed. My favorite example of such a good is the sidewalk. It would be perfectly possible for each bit of sidewalk to be under the complete control of the owner of the abutting property, but that would make ordinary social and economic life impossible, so much so that we could hardly recognize the resulting stretches of land as the sidewalk as it is commonly understood. Often, sidewalks technically are privately owned, but in these cases they can only remain sidewalks when their different owners are required to allow essentially unrestrained and open public use, as is in fact the case in those which the jurisdictions that permit private ownership.

No matter how much one might favor private control of property as a matter of principle, it would be difficult to quarrel with its sharp restraint in such cases as sidewalks, and hardly anybody does. When it comes to other forms of property however, such as intellectual property  (which, in contrast to ordinary material things can only be maintained as property through vast protective efforts by the state and the international order) arguments about why and how these private rights should be limited remain seriously underdeveloped.

Whether mental productions are best taken to be public goods or private intellectual property is not a static question. The possible arguments depend on what is possible and also on how important particular kinds of potential intellectual property happen to be. Today, more or less in the shadows, a series of practical "debates"?more precisely, struggles?are in fact in progress between the two sides in many areas of intellectual property.

The case of computer operating-system software affords a good example. The powerful Microsoft corporation and its flagship Windows is increasingly seen as pitted against the upstart Linux. The former is sold, with strict proprietary restrictions, so that each copy may only legally be used by one purchaser, and these restrictions are eagerly policed by Microsoft, which is not at all shy about taking violators of its restrictions to court or to jail. The latter is the brainchild of a twenty-something programmer named Linus Torvalds, acting with a legion of volunteer programmers all over the world. Together they openly and continually modify and update Linux, while allowing anyone who wants to use it to do so without charge. The contest hinges largely on the appropriateness of different concepts of property and public goods.

A much wider struggle surrounds efforts (so far successful in Congress and the courts ) to patent such widely disparate classes as the following:

More fiercely contested battles are underway over the correct means to publish music, video and other expressive forms. One of the latest skirmishes involves a standard know as MP3. As anyone in contact with all but the poorest teenagers knows by now, an MP-3 player, based on memory chips, can quickly be filled with music downloaded over the Internet, often after having been copied by other teenagers and made available over their own websites. The major music and recording publishers rail against this, sue the manufacturers of MP3 and similar devices, tr y to legislate encoding that will prevent copying and genelally gnash thei teeth and predict the downfall of civilization if the works of Sting and RunDMC can't be protected from illicit copying . Powerful as these publishers are, they are not winning.

Musicians, who often resent the artistic control enforced in record company contracts, are increasingly embracing MP3 as offering them more opportunity to be heard. In this case, interventions to protect private property can only take the form of suppressing certain Internet traffic by constant monitoring. Those whose eyes glitter with riches to be made on the expanding Internet resist such controls, on the whole.

In the midst of this mist-enshrouded, swirling war is a battle still less known but in my view at least as important. It arises in a huge, yet little discussed domain? that of trademarks. Trademarks encompass insignia, logos, brand names, mottos and slogans. What really interests me, hovever are the purely linguistic aspects, that is those encompassed in names, mottos, and slogans, and of those, perphaps the most interesting are the brand names themselves, and the implicaions that their being privately owned have for language itself.

Language As a Public Good

Language is perhaps the quintessential public good. Without the free flow of words, indeed there can be no public. It is only because in public discourse meanings are continually in flux, always open to new shadings and redefinitions, regardless of what quarter they come from, that society can navigate the continual changes it itself undergoes and still retain any semblance of communal coherence, even the minimal sort needed for a functioning market.

"When IAlice Through the Looking Glass. The humor is in the?seemingly?clear absurdity of Humpty's claim. Words do not derive their meanings through the private will of the speaker, but publicly. As Wittgenstein argued, a purely private language is impossible, meaningless. New words, new phrasings, new colorations of meaning, and new grammatical patterns, even though individually introduced or invented, all require acceptance and adoption by others in a continual public interchange if they are to have any communicative value, if they are to be part of language at all. The play between signifier and signified is necessarily constructed socially, not individually.

Even your "own" name has meaning only because others may use it to refer to you; you do not control exactly what they mean when they say it, nor what hearers hear when they recognize it. Nor could you. The dance of overtones and implications are part of everything said, tingeing each utterance. To own a word would imply a control over acceptable meaning and usage that quite apparently is unachievable.

Apparently.... But what seems impossible on philosophic, scientific, or logical grounds is not necessarily so from a legal standpoint. Laws have a reality of their own, and even if the ends they ostensibly seek prove to be well beyond their actual grasp? as, for instance, in the case of anti-drug laws?they still can have powerful shaping (or distorting) effects on public life. For this to happen, of course, the laws in question cannot simply be on the books; they must be invoked. Once they are, even when they are not ultimately enforced, or when the invocations are wildly exaggerated, they can exert an enormous pull.

That, I suggest, is exactly the case when it comes to the sorts of property rights over the uses and meanings of words that are codified in the trademark and related laws. The problem is not that speech or thought can be directly coerced but rather that we have too readily accepted a diminution of our rights to free coinage or development of the meanings of protected words. Further, we do that because of deliberate efforts, on the part of the holders of those supposed rights to convince us of the power of their claims, all the while carefully camouflaging what is in fact at stake.

One way in which trademarked words influence language is simply by cluttering up our attention with new terms we must learn just to maintain an understanding of life around us. Often these are completely invented words that had no prior meaning at all: the newish Netscape, Prozac, Pentium, CNN, iMac, or Viagra alongside the more established Shalimar, Levis, 747, Xerox, Jeep, Kodak, etc. As trademarks they are specifically restricted in meaning, forcing us to master generic terms as well: Netscape is a kind of "browser," Prozac is a "serotonin-uptake inhibitor," Xerox is a "photocopier," a 747 is a "jumbo jet," a Jeep is a "sports-utility vehicle" or perhaps "an all-terrain vehicle," and so forth. While the tendency of users of language would be to slide between specific and generic terms, trademark owners do everything they can?including obtaining legal injunctions?to force the use of the generic term while at the same time, largely through advertising, hardly allowing us to forget the brand names. Thus a university may have a copying department, but the Xerox corporation makes sure it does not have a xeroxing department.

This inistent doubling of meaning is in itself quite recent. Most things newly introduced into the world are given names, after all, often by their originators, or they are named after them. These names then enter the language, usable by anyone. Such was the fate of the Bowie knife, the Diesel engine, aspirin, penicillin, the phonograph, the computer, even the CD player; the name and the generic term are one and the same. Not so for a host of mostly newer products and concepts, however, which require the mental doubling, the more complex set of awrenesses that makes even ordinary speech and thought more complex than it might have to be, that requires us in dialy speech to to be aware of what has the little circled R with it and what does no, to incoroorate the ruels governing trademarks inot the smaepart of our superegos that regulates the use of profanities and care for grammatical niceties .

Difficult as it is to navigate these twinned branded and generic terms, trademarks are by no means restricted to newly minted words. Standard, well-used terms can also be trademarked for specific products. Thus "Philosophy" is now a foot cream, "Contradiction" is a perfume, "Biography" is a trademark of the A&E Television Networks; then there are Windows, Word, Office, all emanating from Microsoft, along with Accord, Civic, and thousands of others. (Even the Communist hammer and sickle is now the trademarked logo for a brand of vodka. )

It might seem that these new coinages are unproblematic, merely adding new meaning to old, while creating little confusion. But trademark owners themselves often don't see it that way, and act to wall off usage in their own favor. Consider this letter to the editor appearing in "Motorland," the magazine of the California State Automobile Association (and therefore with a circulation in the millions) :

"Motorland's" article "Sniffing Out Drunk Drivers" (Nov/Dec) refers to the "Sniffer" as a device that quickly measures the alcohol in the surrounding air. This use may cause confusion. Network General Technology corporation is the owner of the trademark "Sniffer," a computer program for use in analyzing and testing digital traffic operations in local area networks [....] Network General, owner of the mark, has the exclusive right to use the mark and has registered this mark with the US Patent and Trademark Office as well as other government agencies.
-Jill E. Fishbein, Vice President and General Counsel, Network General
Note the subtleties here?and the gross imposition on language in practice. "Sniffer" is of course a noun formed from the verb "to sniff; " it is a very common colloquialism meaning nose, and also, in slang dating back to the 1920's, a cocaine user. Or is it? Can it be used in these ways any more, now that Network General has claimed it as a "mark?"

In her letter Fishbein nowhere actually states that it was legally impermissible for Motorland to use the word in the completely reasonable and comprehensible sense it had. Most likely the courts would finally reject such a claim should it come to that. But it doesn't have to. While in fact threatening nothing, Fishbein leaves a strong implication, backed by her weighty references to ownership and exclusive rights, that the word, when capitalized at least, is now to be restricted to a meaning that would only be of concern to a rather select group of information-systems managers. The success of the tactic is evident: it was enough to scare some presumably professional editors into devoting scarce letters-column space for her recondite remarks. Further, it was very probably enough to make them look over their shoulders with a bit of concern from now on whenever a remotely similar sort of usage?of any word?should crop up again.

Inevitably, some of this concern is passed on to Motorland's many readers and even more to its writers, as well as to any well-behaved and careful speaker who should stumble across Fishbein's words. Clearly such concern is not limited to the word Sniffer. Who but a few lawyers know what limitations are implied by someone's ownership of a trademarked word? When in doubt in this litigious society, it often feels best to be cautious. Or you may simply be law-abiding on principle. Sticking to the olfactory, if you innocently should happen to refer to "the scent of contradiction" might you be infringing on Calvin Klein's perfume trademark? If you put your remarks in print will you and your publisher receive a warning as stern as Fishbein's? Or what about planning a conference on the peripatetic school, entitled "Philosophy on Foot." Will the foot cream people get you? There's a bad aroma in all this.

Other cases go even further afield:

A couple from the state of Montana decided to open a knitwear business, logically enough calling their new, little company "Montana Knits." They soon fell under the gaze of the protectors of French fashion-designer Claude Montana's trademark rights, and were duly sued to prevent their use of their logical name. It apparently was not germane to the suit whether or not Claude Montana actually designs knitwear or has any intention of starting. It is just that the westerners might be appropriating a bit of his good (trademarked) name.

The fabric tightens. That example took us to the Northwest; but opposite corner of the land is drawn in too:

Since 1981, Key West, Florida, has "honored" its one-time resident, Ernest Hemingway, dead now for 39 years, with a "Hemingway Days Festival," of amusements vaguely connected to the author. In 1997 it cancelled the festivities after a company called Fashion Licensing of America, told them "Hemingway, Ltd." a partnership of his descendants, owns the rights to "exploit" his "name and likeness."
Could George W. Bush, Jesse Jackson, Madonna or Bill Gates bar public conferences on themselves? Could it become illegal to "exploit" their images by writing articles, for pay, about any of them? Could some "Dewey Society" claim such rights relative to the thought of John Dewey? Again probably not if it went all the way to the Supreme Court, but still, comparable ownership rights of some sort have been supported by courts. The Hemingway event was cancelled; how many comparable events will never reach the stage of serious consideration for the same reasons?How far could the whole claim be taken? Could the mere use of "Hemingwayesque" , or the mere mention of Hemingway (capitalized) at all be regarded as illicit exploitation? Or could even the implicit use of his name call forth wrath? Could Hemingway's whole distinctive writing style now be verboten? Truth in this matter may prove to lie in the eye of the trademark holder.

Perhaps even these examples seem marginal to you. Consider then the doll that originated as a mini-version of a prostitute for the amusement of German men in the post-WWII era. Brought over to America and slightly altered, it was re-christened Barbie, and the rest is history. The Barbie doll's ubiquity, and its influence on the imagination of young girls make it as much the legitimate object of serious social and even political scrutiny as say, violence in the movies. Indeed, some serious researchers believe that Barbie's ludicrously thin figure has helped lead to the current epidemic levels of female anorexia and bulimia, either of which, untreated, can be fatal. And that is only one of the serious social impacts ascribed to the doll.

Thus it is no wonder that there are, for example, several prominent websites devoted to Barbie, some in homage , some in challenge, some in satire (for instance the site for the "Klaus Barbie" doll, referring of course to the war criminal of that name). In addition there are books, museums, popular songs, magazine articles and much else.

Currently, Matell Inc., owner of the name, has decided that the Barbie brand is so valuable it wants to make sure that only web sites and music approved by the company can use the name. To achieve this, it has mostly been using strongly worded legal letters, relying, as Jill Fishbein's did, on the fact the mere hint of a lawsuit by large company is often intimidating. In some cases, such as that of a Danish group's extremely popular song anent Barbie, it has gone far further, suing against what is argued to be trademark infringement. Evidently only Mattel has the right to put Barbie to music.

If songs, and Websites can be threatened, why not much else: why not books, movies, newspaper articles, or any prominent mention of Barbies or of any other controversial trademarked item or service whatsoever? Can there still be any doubt that the mere exercise of plausible rights stemming from the ownership of trademarked names can and does have a chilling effect on politically important intercourse?

All the examples I've given imply restrictions on the smooth operations of markets as well. For a still clearer instance of deleterious economic impact try this:

For nearly a century, operating from a factory in the Bronx, employing about a thousand people, the Farberware company has been turning out a line of well-regarded, moderately high-priced, functional but not stylish, very sturdy pots and pans. Having not made much money of late, the business was sold in 1996. The new owner, in turn, promptly sold an exclusive 200-year license for the use of the brand name "Farberware" to a businessman in Asia, at a price well exceeding the amount he had just paid to buy the entire company. Thus enriched, this able entrepreneur then decided to close the now nameless factory. A public out cry delayed thelcosing for a bit, but did ntohing to stop the flight of the name.
The Farberware name goes on, presumably leading customers falsely to believe they are getting the same good products as ever. The new licensee also hjas the right to produce completely new products ?or have them produced? and identify them with same reliable name. The loyal Farberware workers, however, are out of the equation: they no longer benefit from association with the name they made so valuable over the years.

There is nothing uncommon about this basic pattern. Brands are sold or merged, and factories are partially or wholly closed down while the trademark survives, all the time. Sometimes nothing but the brand name remains, to be bought and then applied to products wholly different from anything that went under that name before. Thus Packard-Bell was once a distinguished brand of radio. After manufacture had entirely ceased the name was bought so that the new owner could clothe his low-cost computers with unearned repute, a transaction the business community found entirely Kosher, in fact found to represent praiseworthy ingenuity.
Together, these scattered examples only hint at the magnitude of the distortion of language that can come about when thousands of different firms, many very large, start taking their trademark ownership more and more seriously. Each time a company acts to protect what it views as its inalienable turf, the domain in which the public at large has free rein over language is narrowed, though more by self-inhibition than actual force or legal ruling.

Why Trademarks?

It is worthwhile to trace out the kinds of arguments that can be advanced for the kinds of rights now accorded to trademark "owners," in comparison especially with the rights adhering to ordinary proper names. I shall show that there is no reasonable justification for the laws as they are now. Yet, as I shall also indicate the current emphasis on trademark rights is an outgrowth of the evolution of "late capitalism," putting this entire system increasingly at odds with the kinds of flexibility of language a social order needs if it is to survive.

Trademarks have been in use for centuries, though, their importance in economic terms has grown markedly of late, and as a result, trademark law has become far more active than it used to be. A brief review of their history will help explain why.

In their origins trademarks and brands had nothing to do with anything resembling a free market. They were among the many signs used in a basically preliterate society, including coats of arms, banners, icons, etc. Brands were of course marks burnt into slaves, cattle and other "goods" to indicate ownership. Trademarks arose in guilds, as markings that denoted each separate master worker, and were owned only in the sense that they adhered to the workshop when the master willed that to heirs, or more rarely, sold it. The primary function of the marks was probably to ensure that taxes and license fees were properly paid, and that guild monopolies, standards, and limits on production, when these existed, were observed. The marks were generally small and inconspicuous, befitting their unimportance for buyers.

As long as commodities in the sense of recognizable categories of goods sold in the marketplace, were mostly fairly simple, and generally traded in bulk, the names of their originators would rarely be known to, nor have any great importance for consumers. Even today, direct inspection tends to be adequate when it comes to choosing fresh produce or meats, nails and screws, pads of lined paper, potted plants, hammers and similar tools, yards of cloth, bulk gravel, and much else of the kind.

Names often were attached to goods of certain kinds, but hese were basically designations of the locale inwhich they were made, or thought to be made, Madeira wine, flanders cloth, Damacus steel (which actually hailed from India), and, later, Staffordshire pottery, Venetian glass, calico (cotton cloth originally from what is now Calcutta), China tea?none of these are brands. Today certain such names as Roquefort cheese or Chianti wine are appellations which the respective countries of origin regulate with care; goods from outside the regions cannot be labelled as coming from them, regardless of whehter or not the same company happens to produce similar goods both within and without the designated zone. These appellations are hence not private proeprty, not brands or trademarks, but something quite different, more similar to those rules which specify what can be labelled" butter", "beer," "40-weight motor oil" or "organic." But I am getting ahead of myself.

For other items such as concert-quality musical instruments, fine furniture, and some hand-made glassware, the hand of the specific maker has certainly long been relevant?Amati and Stradivari, the stringed instrument makers, were at work and admired in the seventeenth century? but the quality of a particular piece of craft work could still be detected by a discerning buyer without having to rely on the maker's mark. If you're a good enough player to benefit from having one, you just have to pick up the violin, for instance, and try it out.

Starting only well into the 19th century, and only for items that did not reveal themselves directly, and therefore could not be directly assayed, did brand names assume a much larger weight. That condition came to hold true for two major classes of products: complicated technological ones such as watches, cars, or computers; and all those goods that come prepackaged in sealed containers, whether opaque boxes, cans, bags, cartons or even transparent but sealed bottles. The brand became especially relevant when such items originated in distant factories, so that the consumer could neither observe the manufacturing process directly nor have a familiar face to complain to when something fell below expectations. Brand relevance rose further when the distant factories' output had become highly standardized and uniform, for otherwise past experience of a branded product would indicate nothing about present possibilities. Thus it was only around the middle of the nineteenth century or even later, when commerce began to operate on a national level, that brand names assumed any great importance.

For consumers, selecting a known brand then began to offer a sense of assurance that the product was reliably designed and made, that someone would stand behind it if problems arose, and especially in the case of packaged foods? "Plumtree's Potted Meats," etc.? that the contents would have the same consistency, flavor, and nutritive quality as the last time. In fact, in the era of mass production, items of this sort can be incredibly uniform. Whether they be a certain kind of cookie, photographic film, plastic tape, or over-the counter drug, items with the same label tend to be so precisely similar as almost to approach a fixed Platonic ideal. If you love Coca-Cola, Stolichnaya Vodka or Nabisco Oreo cookies or depend on Bayer Aspirin or Elmer's Glue, you expect exactly the same substances in the same form to appear whenever you open a pack or container.

How Brand Names Referred, Formerly

This value of the brand rested on a set of assumptions that were left unstated but implied. One was the continuity of the company producing the product and affixing the brand. At first the brand name was usually the family name of the proprietors, and the assumption was that under the same family's leadership the same assiduousness of control would be handed down through the generations, and that family respect for tradition and reputation could be relied upon.
A second implicit assumption was the continuity of the production process itself. New machinery might be introduced from time to time, but only to improve upon and perfect the methods already in effect. Behind that was yet another assumption?the continuity of knowledge, skillfulness and trustworthiness of workers and forepersons in the factory, who would keep turning out the product through the same operations and to the same specifications time after time, and who would have ample opportunity to train successors to proceed with the same craft and care through the same routines.

Thus?and this point is critical?the actual referent of the brand name was not so much the product itself as the specific proprietors, factories and collectivity of workers who kept turning it out, along with the shared values, methods, and traditions that held them to the task.

One thing that presumably keeps all engaged in making a product keen to continue traditions of the past is the very knowledge of the value of the reputation it has previously garnered. This reputation is granted, in effect, by the public, through awareness of what the brand name designates, and thus the name's value and meaning is circular, self reinforcing, self referential, through the continued will of that public itself. A worker turning out a product of high repute can take pride in being connected to this name, and that pride is reflected in the dedication she brings to her task. Whatever is designated by each particular brand name, then, the ultimate validator of this designation, the ultimate definer of the term, thus remains society as whole.

Were it the case that brand names continued to obtain their meanings in a similar fashion, the proliferation of products might lead us to fill an awkwardly large portion of our personal vocabularies with such terms, which might cause problems, but the more serious problem of who is permitted to control meaning itself would probably not arise.

How Names are Owned, and Why

In effect, brand names represent a new part of speech, intermediate between proper and common nouns or adjectives. With a person, town or region designated by proper name, one expects the referent to alter over time, as the person ages and changes in habits or attitudes and as the town develops or decays; but one counts on there being only one Paris, France, with its location remaining fixed; likewise one expects that each person, though moving about the globe, will always be in only one place at one time, remaining singular and unique. For the traditional brand-name good, to the extent that the brand is taken to refer to the product itself and not to its origins, the opposite is the case; the product does not alter in time, but remains fixed by its ideal type, while it is to be found, if not anywhere, than in a huge number of places at once. It takes on the characteristics of an Aristotelian natural kind, which normally would be designated by a common rather than a proper noun; yet proper?and owned?it is supposed to remain.

But proper names, as such, are not in fact owned. In general, each proper name distinguishes just one individual in the community in which the name is used to refer. Thus, "John the smith," or "John Smith" might well have picked out exactly one individual in a typical, small, or even medium sized village, a century or two ago. Even today, it is a nearly universal rule that a first name is only used once within a nuclear family, and neighbors do not commonly designate different children with the same first and last names. This is the sense in which a name may be said to belong to a specific person.

Nonetheless, these limitations remain purely conventional rather than legally mandated, and are frequently breached in practice. No matter how hard you may have worked to build and secure your personal reputation, nothing prevents someone else from having exactly the same name yet acting entirely unlike you.
Further, in the normal course of events, the existence of more than one person with the same name is not much of a problem. The usual procedure used to repair this present-day lack of specificity is to add additional characteristics such as place and date of birth or aspects of individual biography (e.g., "John Smith, the late head of the British Labor Party") narrowing down the designations until only one biological person is singled out by the reference. We do not have much trouble, in such cases in keeping reputations separate in our minds, though on occasion embarrassments resulting from mistaken identity do occur. (Until quite recently, I had always assumed my own surname to be sufficintly rare that I didn't have to worry about a döppelganger. Then I found out that a writer for Newsday shares my first and last name, and even graduated from the same college. You have to compare middle initals to tell us apart.)

Despite these dangers of mixup only reveal the deeper impoartance of the fact that you do not own your name, nor have exclusive right to designate only yourself with it, however convenient that might be. If you happen to have an "evil twin," that is your tough luck, to manage as best you can, without the law's intervening. Only when someone goes beyond claiming the same name, pretending to your specific identity, can you can have legal recourse (against fraud).

As I have already mentioned, you also have no control over the overtones attached to the words that designate you. To be useful to you, your name remains a word available to anyone who knows of you, a part of language, though a special part. Others can take it and turn it into an adjective or a portion of some more complex compound, such as "Reaganomics," "Aristotelianism," "Castroist," "Yeltsin-like." The more you are in the public eye, the more this will happen, and the less your control over the usages, friendly or unfriendly, or the precise forms of your name that appear in talk or print. In the US, at least, even the libel laws work less well the more famous you are.

There is another sense too in which you do not own your own name. You cannot normally sell it to anyone else, as you can anything that is normally considered to be your property. (True, you could agree to change your name in return for a payment from someone else who wanted to use it, but that wouldn't mean that they would acquire exclusive use of it, any more than you have that for sure now.) The more famous you are, the more people are likely to change their names to resemble yours or to name a child in your honor, and that too is beyond your control, as a rule.

To return to brand names, though they began mostly as the proper names of local craftspeople or proprietors, they have long since developed quite different characteristics insofar as legal ownership is concerned. Claude Montana the designer has no exclusive ownership of his name as personal name, but he can still successfully claim exclusive ownership rights to designations vaguely relating to his business, just about anywhere in the world. Likewise, if "John Smith" were the name of a soft drink, the current legal trend in brand names is that there could be only one owner of the rights to that designation in the world.

Presumably, this difference between personal names and brand names stems from the fact that single corporations have grown to supply their products first to whole countries, and then to the entire world. The argument would be that if a firm is active everywhere, there can be one and only one ultimate reference (or proprietor) for each brand name it relates to. Clearly, today this separate treatment makes little sense, since a sufficiently famous person is also, in effect, everywhere, yet does not, and should not have comparable exclusive name rights.

One argument in favor of exclusivity of brand-name assignment is that without it the buying public might be dangerously confused and too readily cheated. But if, whenever they want, owners of brands can legally make any changes at all in their branded products or even sell off the names to whomever they choose, that argument too fails to hold.

A Shift in Capital Leads to a Shift in Meaning

One thing both Karl Marx and any recent MBA would agree upon is that in the long term profits will be low or non-existent in any industry where pure price competition holds sway. In contemporary business parlance, it is the products of such industries that are known as commodities, and producing them is to be avoided. This is because the only possible tactic for increasing profits in this situtation involves increasing sales by either ratcheting up production or lowering prices? or both. When carried out by all competitors, the tactic soon saturates the market . At that point prices drop until manufacturers can barely recoup their costs.

The way out of this dilemma, if you are a business head is to make sure that pure competition doesn't hold for what you produce. National brands themselves arose in reponse to this, but more or less as a byproduct of the fact that one way to beat competition is to produce at such a high volume and at such low costs per item that comeptitors cannot match you. In other words, successful manufacturers took advantage of what are known as returns to scale, the fact that very large production operations could be more efficient than small ones, usually through the use of very large factories. Since huge amounts of capital are needed for production on a national or international scale, that fact in itself limited competition. The barriers to entry were just too great.

That era is largely past. Flexible methods of production limit the advantages to scale in many industries. Almost any given category of thing, from complex computers to four-wheel drive automobiles to perfumes or baked goods can now each be turned out successfully by many possible producers located somewhere on the globe. Even distribution channels are no longer difficult to obtain. Other methods to avoid price competition are required.

For a while, patents played a pretty large role in this. General Electric managed to maintain a light-bulb monopoly by having essentially the same patents reissued to it over and over, until the courts in the mid-50's struck down the maneuver. Today, even though patent life has been extended from seventeen to twenty years, with our current level of science-based technology, patents no longer offer much in the way of working monopoly. Prescription drugs are a good example of why.
Whenever the type of disease to be treated suggests a large market, potentially valuable drugs currently emerge from laboratories at a rapid clip. Any significant breakthrough almost always points the way to a whole class of similar yet distinct drugs, not covered by same patent. Prozac, the anti depression drug, was followed to market in just a couple of years by Zoloft, and then by others with different formulae but pretty much the same function. Were the drug approval process less lengthy and costly the flow of new drugs of comparable performance would be greater yet.

In these circumstances, advertising, combined with other methods of public relations and marketing, have become practically all-important. If they are to work effectively, all these means of generating profits rely on recognizable brand names, which have therefore become absolutely central to the success of almost every large business. Further, in this highly competitive environment, companies naturally seek to "leverage" familiar brand names by affixing them to as many (loosely) related products as possible.

To facilitate this, advertising agencies devote great efforts towards attempting to define the essence of a each brand name in the most vague possible terms that still can have any meaning. Consider how the meaning of the phrase "IBM" has evolved. Originally the three letters stood for the imposingly global "International Business Machines, Inc.", its products being such things as punched-card sorters, addressing machines and other specialized office tools for large to mid-sized firms. Then came electric typewriters. Later, by 1960, "IBM" became virtually synonymous with what are now known as mainframe computers.

As computer technology advanced, however, IBM could no longer dominate all branches of this market. First "mini-computers," then "supercomputers," and finally micro-computers or personal computers broke free from IBM's hold. The mainframe itself seemed an endangered species?too expensive, gigantic and difficult to use, and no longer necessary. If the company were to continue to survive and prosper, the name "IBM" could no longer stand for "mainframe computers." PCs had meanwhile pushed electric typewriters and all IBM's other pre-computer products into oblivion.

With its ad agencies, IBM discovered in the mid-90's that, in truth, its name stood for "solutions" ? as in solutions to problems. You or I may not think of IBM whenever a problem needs solving, but IBM's advertising is now geared to just such a response among business executives. The very vagueness of the concept is part of its appeal, at least to IBM. Any state of affairs may be viewed as a problem, and therefore under almost any conditions, presumably one might think "IBM." Of course, the thought would be altogeher too vague were it not that IBM's prior computer connotation continues to lurk in the mind.

Identifying itself as the "solution" company turned out to be highly profitable for IBM. Even in the relatively rational field of management, the unconscious, irrational processes that lead executives to think of calling IBM to find a "solution" are plainly at work. How much more important then are similar vague connotations and feelings when it comes to ordinary consumer goods and services, where the constraints of careful management and accounting rarely enter at all.

Defining Desire

Some thoughts due to the French psychoanalyst Jacques Lacan afford insight here. One has to do with desire. When infants cry, their parents take it for granted that the cry has meaning attached to it. In trying to stop the crying, they think they are finding out what the meaning is. Does the child want to be fed, to sleep, to be rocked, to be sung to, to have her diaper changed? These questions and a few more are all that are likely to come up, at least in our culture. However, the baby's wishes aren't necessarily that specific, or if they are, not in exactly these categories. In effect the parents' responses force infantile wishes into certain pre-existing pigeon holes, teaching the child in the process what it is meaningful to want or to express. Desire comes to have definite meanings attached to it,when quite possibly, some desires, or pains, are much more nebulous, and may not have any definite object in advance at all.

Another Lacanian observation concerns how we are mentally and emotionally structured by the exigencies of language. In English, at least, "I want," is not a possible sentence until an object is supplied. A state of simple desirousness is not an emotional condition we are taught to recognize in ourselves; to exist, desire has to have some focus. I suggest it is in the lacunae created by this unacceptable indefiniteness that advertising operates as a kind of surrogate parenting.
As an infant you learn that you are supposedly hungry-thirsty (i.e. want the breast or the bottle), and then, later that you are hungry or thirsty. Hungry for what? Thirsty for what? Food? Drink? Too unspecific. Why shouldn't you be thirsty for a Coke, so that as soon as the vague desire wells up in you, obtaining a glass, bottle or can of Coca-Cola comes instantly to mind? Why shouldn't you be "hungry for Burger King," (to quote an old jingle) even though that implies not a specific item of food but a place of business?

What advertising now does, obviously with some degree of success, and especially so for the young, is to add to and shape language, supplying us with the words, words that happen to be brand names, by which to know the meanings of our own vague and unnameable sensations, to know as well, in fact, just who we are. The greater the range of inner feelings that end up corresponding with the desire for some particular brand-named object, the greater the success of the company that owns the brand.

The New Sources of Community and Identity

It is no coincidence that advertisers and the developers of brand names find their most opportune targets in many of the very groups who have in the past been among the most fecund re-makers of language and, thus, of thought. The young especially are in their sights, and, as more traditional determiners of identity, such as family, religion, local loyalties, political party loyalties, occupational traditions and the like continue to lose their grip, self definition through full acceptance of the Lacanian chains of commercially created meanings obtains new leverage. Kids, in other words, seek brands and the meanings supplied by brands as sources of their own authenticity as never before.

Surrounded by advertising and consumer goods, but otherwise often part of a huge, undifferentiated crowd, consumers in general and children?and teenagers especially? increasingly attempt to strengthen their own chances at achieving belonging or recognition through linking themselves with major brands. Corporations eagerly exploit this. Thus, there is a Coca Cola store in Times Square that sells not the drink so much as the logo, emblazoned on T-shirts, sweatshirts, mugs and just about any other item, just as college names and mottoes have been for some time, or in the manner of baseball teams caps and jackets.

While one might well bemoan the contemporary absence of deeper attachments for providing context, there is something commendable about this search for common symbolism. Membership in a community of this type is open to anyone, anywhere on earth. Further, in comparison with other forms of community, the costs of entry and the barriers to be overcome are very low. Kids around the world can wear Nikes, or failing that, Nike knock-offs, close imitations that cost less. Superficial as such items may be as indicators of identity, they may be preferable to a situation in which every ethnic group, or indeed every subgroup or caste, have their own distinctive costumes, or when clothes clearly demonstrate gender, class membership, and the like.

The more corporate identity is connected with brand names, the greater the reason to try to domesticate these names, to sublty alter and redefine meanings, to incorporate them in metaphors, and to find still other ways to control the mental processes they evoke. Thus, if the corporations involved were to achieve total brand-name penetration, along with their delight at such a takeover of language, would have to come dread as well.

Corporate profitability would at once be tied up in maintaining their carefully chosen vague connotations, yet utterly exposed to unexpected linguistic creativity. In these circumstances, for them, exercising the greatest possible control over meaning becomes a prerequisite for sheer survival. Even the most enlightened of businesses will be increasingly tempted to police meaning with an ever greater rigor, doing everything possible to keep their brands on every lip, and yet at the same time keeping them immune to the vagaries that beset unowned, common nouns and adjectives.

Unhitching Referents

Maximizing the power of brands entails not only adding meanings, but also subtracting them, when that works more favorably. The older references to proprietary families, specific factories in definite locales, stable groups of production workers, or even particular, unchanging products or pseudo-natural kinds are now all secondary. They are to be cast aside when they no longer suit the ends of the controlling body of shareholders of the moment and the top executives they put into place. Further, as factories can be sold, and as brands are now even more important than those factories, it is natural for businesses to take seriously the impression that the control they have over brands should amount to ownership that can be transferred by the same kind of selling process. The arbitrariness and illogic of this presumed right is neglected or denied.

In effect, trademark owners now revise Humpty Dumpty's wild assertion that a word he uses means what he wants it to mean. When anybody uses their word, it now means exactly what they want it to mean, or so they would have it. An ideal brand name would be a free-floating signifier that would evoke in anyone who heard it a hunger to identify with it and to send money to the trademark owner?whoever that happened to be at the moment?without expecting anything in particular in return. Close as some brands seem to have come to that, the ideal is clearly unrealizable, and its absurdity suggests both the ultimate shakiness of the whole edifice based on brands, and the probable future of lashing out in desperation as brand name owners find their infinite hopes increasingly frustrated.

No matter how many brands you may know of and feel some tug towards, you may only wear one easily visible T-shirt, wristwatch, and stylish sunglasses at a time, only drive one car at a time, only drink so many cans of soft drinks per day, eat so much fast (or slow) food, use so much software, connect to so many web sites, have so many bank accounts and insurance policies, and so forth. But even should you want to work full out at consuming branded goods, that would not satisfy the owners of the trademarks.

The diversity of brand names requires constant reinforecement through ads and publicity, and the more nebulous and ever-changing the meaning of the mark, the greater the need for attention on the part of not only the ultimate consumers but on the part of those who will form an audience the said consumers will want to impress by showing off their purchases and brand allegiances. Thus the needs of brand owners for what is called "mindshare" (i.e. attention and associative memory) directly conflicts with consumer's need to pay attention in order to consume with anything less than total disregard for good sense.

Even if you buy things for the sheer pleasure of buying, and immediately store away what you've bought in the recesses of your closet, or better yet immediately chuck it unopened in the garbage, to ready yourself to buy yet more, each act of buying still requires some small bit of attention. If you don't happen to be a billionaire insanely obsessed with shopping, you will continue to have to pay more than the minimum possible attention to what you've got for the getting to seem worth it. Likewise, the more you are caught up in the romance of brands, the more you will want others to pay attention to the brilliance or modishness of your choices, and that requirement poses still further strains on the net supplies of attention?which?per capita is a definitely limited resource.

So it's an arms race spiralling out of control, a growing competition for something?attention?of which the supply just can't keep expanding. In this, whatever trademarks already have recognition (without having yet become stale or old hat) gain increased value, and so their exclusive control must be ever more tightly and vigilantly maintained with ever-more agressive legal and quasi-legal moves to forestall what the owners consider misappropriation or misapplication. Meanwhile, the surrounding penumbra of vaguely alluring meanings must continue to be reinforced. Designated, trademarked phrases relating to any product, no matter how mundane, must continue to multiply.

As I write this, my eye happens to stray to my classified phone book, which I see is now not simply the yellow pages but the "SMART Yellow Pages". On the front cover I learn the banal slogan "Get An Idea" is a registered trademark, that there is a website (www.smartpages,com) and that inside are pages of trademarked SMART coupons. In case this is not enough, there is also a registered logo, which I will not attempt to describe. I open the directory at random and come across an ad for a beauty salon featuring "Quality Products From BIOLAGE ; BAIN DE TERRE ; FRAMESI ; JOICO ; KMS ; L'ANZA  NEXXUS ; PAUL MITCHELL ; REDKEN ; SEBASTIAN 8; NIOXIN." One thing that shocks me about this list is how many of these names are familiar, how much of my own passive vocabulary is already taken up with the trademarks of products of minimal intrinsic interest to me. Yet I could continue thumbing through this vast tome and find similar numbers of known brand names on probably every page.

And that is only a taste of what is in store as the Internet continues to proliferate, with new web companies that seek attention from all web users anywhere being born daily, insistently advertising any way they can. Thinking of web "search engines" alone, and without consulting any list, I can instantly come up with Yahoo!, Google, AltaVista, Infoseek, NorthernLight, Hotbot, Ask Jeeves, GO!, Excite, About and Netscape, none of which I knew five years ago.

I have to admit I would be hard pressed to identify any concept or quality that differentiates Nexxus products from those of Paul Mitchell or Nioxin, or say how Yahoo! differs from Infoseek, yet I do distinguish among most of the search engines because I think I know something about how they claim to differ. It has even dawned on me that Northern Light must be a kind of breakaway from Alta Vista (or vice versa) since the names both invoke upper latitudes and sights. Meanwhile "Yahoo!," for me, has unpleasant Swiftian connotations that I am quite sure its originators didn't intend, presumably out of ignorance, which still tends to diminish credence in their search engine. For some reason too, the names KMS, Sebastian, Redken, and Bain de Terre ("bath of land"?) make my skin crawl, and on the basis of name alone, I would shy away from these products. Come to think of it, Nioxin is pretty reminiscent of Dioxin,the dreaded poison, and Joico sounds sort of junky....

Idiosyncratic as my reactions may be, almost every name chosen for its ability to set itself off from those of competitors is almost sure to inspire instinctive distaste among some set of potential consumers. Trademark owners have a hard row to hoe, therefore, often starting with the choice of the name itself. The range between boringly, idiotically bland and offensively noticeable or vulgar is not very wide, and unsuspected connotations lie in wait even there. While it may have worked for an old family company to claim "with a name like Smuckers, we've got to be good," if you've just named your startup "No Thought," "or "Soft Dick" you can hardly resort to the same trick. (An old Saturday Night Live routine parodied the Smuckers ad by coming up with more and more gross imaginary brand names, culminating in, "With a name like "Dog Vomit" it's got to be good!")

Protecting a name that seemingly avoids such traps from being polluted by something less wholesome but phonetically or orthographically close is among the other reasons for trademark vigilance and constant outpourings of public relations pap. A Macdonald Fertilizer Company that started advertising handy sterilized sewage patties might well cut sales of quarter pounders at its near namesake, and would certainly set the attorneys to letter writing.

Language itself is fluid, however, with new meanings, new slang, euphemisms and dysphemisms alike forming around any words or names of importance, often with an aim of deliberate disrespect of whatever seems to be putting on too many airs or just being too commonplace or predictable. That vernacular vivacity is at cross purposes with staked-out ownership of verbal territory, at times indeed consitituting a deliberate trespass. It therefore becomes the goal of trademark holders to freeze the rivers of language before their carefully constructed boundaries can be breeched.

Consider some simple examples of what their exercise of control already can mean in limiting linguistic options. A generation ago,it was not uncommon to feel some fondness for eating in "beaneries," "dives,' or "greasy spoons," but in using these terms of familiarity, a certain contempt necessarily showed through as well. Were McDonald's the homey place it pretends to be, such attitudes would be expected in regard to its name or nickname as well.

But no matter how seedy or dive-like an actual McDonald's may be, the generic one is always to be regarded as neat, sanitary, and cheerful. One can expect any usages that contradict this to come under swift and heavy corporate attack. Furthermore, every speaker and writer must be at least slightly aware of the threat of such verbal policing, and thus inclined to shy away from threatened constructions.

The vaguer the connotations a corporation wants associated with its brands, the greater the temptation to police for subtle misuses that will inject different meanings into consciousness. This implies thought control that nothing at present prevents from rising to odious levels.

Taking Language Public Again

If language is to retain its central value as a public medium of expression and communication, we cannot allow meanings that creep into all aspects of life to be treated as private property, to be subjected to legal restraint, threats of such restraint, or even implications of such. A clear rule to insist on is that all words be under the minimal possible public constraint, including trademarked words. Like a person, a company should have the right to identify itself, and to call for prosecution of anyone else who falsely claims to be them or to speak for them. Any other rights of trademark should be granted only under the most careful showing that the public good or the workings of truly free markets would be injured were these rights not granted, and then for as limited a time as possible, and certainly not in perpetuity.

If the justification for restrictions on the completely free use of brand names as labels is to avoid consumer confusion, and to allow well-behaved companies to reap the rewards of their past integrity, then the restrictions are misused when they are treated as property to be bought and sold, which leads to their utterly misleading use. It should not be possible for a firm's owners to decide to get rid of its workers and keep its name, because the name stands for workers too as a rule, if it has any value.

The Farberware example, which in basic outline is a quite common one, offers nothing to the public except for the shareholders, and there is no reason to reserve such a right for them. If Farberware's name may be sold, to be used by a previously unconnected manufacturer then, as in the case of a personal name, anyone else who wants to should be allowed to use the name. The different Farberwares, like the different John Smiths would just have to distinguish themselves by other characteristics, such as "Farberware of the Bronx, the Original, Century-old Makers."

We could reasonably go even beyond that standard. When, in a rash move in the 1980's, Coca-Cola changed its formula and flavor, it apparently did so in a conscious effort to make its product more like Pepsi, which it thought at that time had greater appeal in "emerging markets" around the world. Suppose, instead, it had introduced a new product, called, for instance, "Imitation Pepsi-Cola by Coca-Cola" or "Coca -Cola's Pseudo Pepsi,"or simply, "Coke's Pepsi." The meaning of that would have remained quite evident, certainly as clear as "Diet Coke" and numerous other modifications of well established products.

Why should such usage be forbidden? What valid public interest is served? Anyone who cared about the difference could soon distinguish Coke's Pepsi from, say, Pepsi's Coke, among other permutations that might turn up. Instead of restricting and limiting, such a move would allow brand names to enrich language. In this case, both the companies in question have prospered for years despite having to share with each other and other competitors, the otherwise uncommon word "Cola" in their names.

By the same set of standards of course, companies would not be allowed to protect their names or the meanings they wish to associate with their brands from anything other than intentional, malicious libel. Network General would have no cause to pretend that its trademark was being infringed by the utterly different usage cited above. Anyone could run an Ernest Hemingway festival, or even a Thomas Pynchon festival (Pynchon being alive) without having to ask for any sort of authorial or familial permission, as long as in announcing and advertising they don't falsely pretend to have such an imprimatur.

Of course, such changes would affect corporate profits. But why should the benefits of public language be sacrificed to prevent that? Why should the power of the state be invoked? If companies derive their profits essentially through using government-sanctioned and -enforced monopolies over brands, in effect brow-beating the world into accepting whatever meanings they wish to apply to words, then the standard arguments in favor of pure free enterprise don't apply.
In truth, the exclusive registration of trademarks is a very strict form of government regulation; so it is mere hypocrisy to claim that the restrictions involved do not effect competition or free trade. And this is not to mention the additional restraints on meaning, restraints that other kinds of government regulation quite often manage to steer clear of. On the other hand, if the justification for free enterprise is that it helps give us, as consumers, the goods and services we want, it is absurd to accept restraints on our abilities to define what we want, nor to have our desires shaped for us in a process in which we are not permitted to intervene.


Quite obviously current realities of corporate power prevent these reforms occurring anytime soon. In the meantime, supporters of language as a public good can and should conduct a form of civil disobedience. Words, including brand names should be used however seems most communicative and comfortable, with no bow to implied threats that the trademarking of words confers control of meanings on their putative owners.

Even this step will not be easy. It entails overcoming repressive habits of speech and writing. Intellectuals and academics, for instance,will have to change our very common avoidance of brand names. We may think we eschew these words, which are most often perfectly familiar to us, precisely so as not to give way to corporate power or the banalities of Madison Avenue and so as not to "plug" particular products. But in assuming that to use these words freely we must do any of these things, is to accept their "owners' " power to control their definitions. A use or a mention of a word is only a plug when it completely conforms to the meanings the trademark holder insists on. As it is, when we feel comfortable with the canonical meanings, we almost certainly hesitate less over employing the terms in question; that simply reinforces the status quo. To reestablish language as a public good, therefore, we can start by resisting our own misguided attitudes.

There is no point that is above the fray.

[Notes may be found in the printed version, or consult the author.]