Lexical Property Rights: Trademarks in American Dictionaries

Article excerpt

Commercial America buys and sells just about everything, and turns abstractions into commodities on a dime. Language, for the purposes of lexicography, deserves exemption from acquisition and leveraged buyouts, yet corporations do appropriate words as trademarks to their exclusive commercial uses, and the right of dictionaries to include and define such words has been a matter of dispute between lexicographers and lawyers since the leading British case, Millington v. Fox (1838), established that trademarks might entail a property right. Thus trademarks have been an editorial issue for English dictionaries since the original Oxford English Dictionary (OED). American dictionaries have been wary of them, too, both before and after American trademark law was codified in the Lanham Act of 1946. Since Lanham, no restrictions on trademarks have applied to dictionaries, but the perception that some do apparently limits their inclusion, for they are treated rarely and inconsistently to this day.

Yet, as a matter of principle, dictionaries should record the flow of trademarks into the general American vocabulary, a principle especially urged by historical perspective: earlier lexicographers handled trademarks gingerly, often bowing obsequiously to corporations asserting their supposed rights. Today's unabridged and general dictionaries of American English, however, should treat trademarks less deferentially, not only because deference is unnecessary, but also because trademarks often enter mainstream use, sometimes as names, sometimes in general senses, and perhaps sometimes as both. The semantic development from name to common noun is interesting and important to record, and so is the public's frequent use of brand names in speech and writing.

Nevertheless, trademarks have caused dictionaries some concern, and here is a case in point. The Dictionary of American English (4 volumes, 1938-1944, henceforth DAE) defined crackerjack as "something exceptionally fine or splendid" and as "a confection composed of popcorn, molasses, and sometimes peanuts."

The entry form is one word but, under the second definition, the DAE provides two citations, one as evidence of the one-word form ("I bought a dollar's worth of everything from crackerjack to cantaloupe") and another, from a 1920 Sears, Roebuck catalogue, illustrating a two-word form ("Cracker Jack ... made of popcorn, peanuts, sugar and molasses").

In a letter dated 28 April 1941, the Cracker Jack Company objected to the DAE's entry: "We understand the term Crackajack to mean as defined in number one of your definition," attorney Arthur L. Stang wrote on the company's behalf, "but we do not agree with your definition in number 2, nor your printing of the Sears, Roebuck & Co. Cat. No. 141,802, of the term Cracker Jack with that definition." Mr. Stang expressed more than disapproval; he struck out with well-toned legal muscle: "Cracker Jack, when used as two words, is a fanciful, arbitrary and distinctive mark that we have used for very nearly fifty years for a popcorn confection, and it is our trademark, registered in the U. S. Patent Office a number of years ago." So the Cracker Jack Company thought it perfectly reasonable to ask the University of Chicago Press, in future versions of the DAE, to "eliminate the description of the term CRACKER JACK, and place thereon the words 'when used as two words, a trade-mark registered in the US Patent Office."' (1) The trademark holder must zealously protect the trademark from illicit use; the crucial issue is whether dictionary entry is illicit.

In general, trademarks serve good commercial purposes. As Justice Holmes wrote late in the nineteenth century, they "prevent one man from palming off his goods as another's from getting another's business or injuring his reputation by unfair means and, perhaps, from defrauding the public." (2) On one hand, as Justice Frankfurter argued, trademarks protect their owners, for "if another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress. …