ABSTRACT
Nearly 3,000 languages could disappear before the end of the century – at a rate of one every two weeks – according to the United Nations Educational, Scientific and Cultural Organization (UNESCO). Linguists and other scholars maintain that language, particularly words, are a key component of culture and heritage. Words can also serve as trademarks or brands if they are (1) not descriptive or generic and (2) not likely to be confused with another mark. Because consumers recognize words as key components of trademarks, the intersection between branding and language is axiomatic. This Article explores this unchartered intersection – the role of trade or service mark registration decisions on language preservation.
This Article poses the novel question of whether the US Doctrine of Foreign Equivalents (‘the Doctrine’) thwarts language preservation. It argues that the Doctrine provides English marks a wider scope of protection than required, while quietly eliminating a mechanism for preserving words in other languages. Whenever an application contains marks that are not entirely in English, trademark examining attorneys or judges will first translate the word(s) from the original language into English. This means that descriptive or generic words, regardless of language origin, cannot be federally registered. This also means examiners and judges will translate foreign language marks to English first and compare its English translation – and not the mark in its original language – to the prior mark. If the English equivalent is already registered, then the United States Patent and Trademark Office (USPTO) will likely deny registration of the mark in its original language. This eliminates the potential preservation of words from other languages, a process so extreme that we should consider it ‘trademark linguicide’, a term this Article coins to explain an unrecognized phenomenon. Trademark linguicide occurs when language is forcibly lost because government actors reject marks derived from minority languages through a trademark registration process that quickly represses them.
This timely Article honors the International Decade of Indigenous Languages – the ten-year period between 2022 and 2032 prompted by predictions that more than half of all languages will disappear by the end of the 21st century. It precipitates a new dialogue in trademark law – that the Doctrine should serve no role in confusion analysis because it exacerbates negative cultural consequences for language communities susceptible to extinction.
Robinson, Zaneta, Trademark Law as an Accessory to Language Death (May 1, 2024), Rutgers Law Review.
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