Article: “System Critical Updates Available”
by Mr. Sten Lillieström (LinkedIn)
It is not uncommon to believe that language is merely a set of arbitrary units that we learn by rote. That is perhaps the legacy view and the common idea. But at the heart of modern Linguistics are hard, unresolved questions about what is actually going on under the hood. And the efforts to answer them are not without results.
In spite of this, revision and reform still seem to be largely absent from professional settings involved with names. In case linguistic knowledge is applied it may therefore run the risk to be so taken out of context and so narrowly adapted that the trees obscure the forest.
One of the fundamental questions in Linguistics is related to the nature of structure. This focus on structure stems from the realization that language and languages are not random, and that an explanation as to how and why that is, may prove useful. There are aspects of language that are random, sure. Language is in one sense just an arbitrary pairing between sound and meaning.
But both at the deep level and at the surface level, scientific theory and experience tend to show that we are guided by principles and not chance.
On the deep level, many scholars consider language to be the result of innate mental structure. A computational system that translates the contents of our mind into externalized language. In this domain of language capacity, the guiding principles may consist of the ways in which the internal language apparatus is designed.
On the surface level of everyday examples of expression, in the realm of language performance, not only our internal grammar govern the outcome.
One example may be the way in which we employ association; that our minds intuitively tend to discover, build and interpret analogy. From the sound constituents of speech in the form of sound symbolism, to communicative devices such as alitteration – all the way to the deep conceptual metaphors that underpin comprehension.
For a “UDRP” panelist or counsel this account of language as a generic mental machine may find itself at odds with the predominant notions within that specific discourse. (The UDRP, or the “Uniform Dispute Resolution Policy”, is a formal procedure for arbitration around contested domain names, where a trademark holder is “Complainant” and a domain name registrant “Respondent”.)
For example, it may be one of the most common arguments against a Respondent that the domain name in question is not a “dictionary word”. And in case it is a “dictionary word”, it may conversely be one of the most common arguments against the Complainant that the complaint is frivolous.
This is based on the idea that dictionary inclusion is the relevant answer to the question of what is to be considered “standardized language” or in trademark lingo; “generic”. That idea builds on the parochial view of language as a finite protocol with the correct answer just a flip of a page away.
It may seem like a great way to “fail fast” to assume that if something is publicly available to the extent that it is included in the dictionary, that it is less possible that it was an attempt to target some specific trademark holder. Finding ways to fail fast may additionally seem like an apt approach in a mode of adjudication that is supposed to be a “fast-tracked” option. So far so good.
From the perspective of actual knowledge about language however, dictionary inclusion is not even close to answering the question of what instantiations of language may tend to naturally occur in brand names. Names make up a distinct subset of our collected linguistic knowledge, and brand names are used in a particular arena.
Construing the dictionary as an authority on language and not merely a documentation project may therefore lead to incorrect conclusions, and in fact begs the question why the measure within the context of names should be a dictionary at all.
Dictionaries are great achievements. But the original is called the mental lexicon, and the knowledge embedded in it consists of mental representations, not the explicit specimens recorded in a dictionary. Instead, among other ingenious contraptions, word parts called “morphemes” are retrieved and assembled “online” in an interactive network of processing units.
The nature of the pathways and building blocks that real humans use in real linguistic situations may therefore be a better account of what is “generic” than the contents of a dictionary. A more well-founded definition of “generic” could take this into account, and acknowledge that language capacity and not language performance may be the appropriate subject matter.
After all, not all humans wield the same vocabulary, but they do all possess the same mental foundation for language use. The language processing unit of human kind is not restricted by what words may have been recorded by a dictionary committee. Unphased, it creates new words, or morphs the meaning of existing ones, as required, and on the fly.
The dictionary committee can only respond by announcing the next edition, which will forever remain incomplete and outdated in comparison to the output capacity of the model that produced it’s samples. That model produced all the dead expressions, all the one-offs, all the standardized ones, and will produce all the upcoming ones as well.
Some peripheral or virtually defunct esoteric word is really not “generic” by virtue of common knowledge, which seems to be the standard argument of what dictionary inclusion means.
There are dictionary words that no real business would consider in a million years. Then there are viable “meaningless” expressions with hundreds of trademark registrations that obviously enjoy great general appeal as name identities, but that will never become a dictionary entry.
It’s also safe to assume that the infinite array of expression available to a language user extends to the domain of brand names, and that options that may be relatively unspoken for may therefore materialize and find traction that may not be present today. Fluctuation in naming preferences will also throw a wrench in the idea that language is a static set of constituents.
For these reasons, it is not a wild assumption that over-reliance on dictionary inclusion may result in inference beyond what it actually implies. The effect could be that a domain registrant could unfairly become the victim of “reverse domain name hi-jacking” – or conversely that a targeted trademark’s fair claim to a domain is neglected as a result of inventive and evasive claims of generic use on part of a “cybersquatter”.
An birds-eye view may find that the preferred judicial concept of “generic” seems to be limited to language performance, and furthermore whether the performance in question at some point was considered standardized by a dictionary committee.
The restriction may do more harm than good in case the aim is fair balance, since it completely neglects the collective structure of how names come into existence in the first place, and tends to overlook the arguments that may corroborate that the domain name in question was independently coined for reasons unrelated to the trademark in question.
The study of names has traditionally led a quiet life. This is because their nature has been supposed to be evident. The predominant theory has been that all names are simply “rigid designators”; they elicit no meaning on their own, and their only purpose is to point towards the bearer of the name. If meaning is involved at all, it is therefore equivalent to the knowledge about what the name refers to. This has consequently become the definition of “name” that seems to be preferred within the trademark regime.
All of the above may seem like mere theory, and as such of low import. I disagree with that assumption, even though I recognize that it’s a popular one for a reason. Rejecting claims that may be difficult to prove in the absolute is in general a wholesome approach. This is why the addition of new academic results based on more hands-on research are a welcome addition to valid theory.
Within a field of more explicit language experiment called “Psycholinguisics” or “Neurolinguistics”, contemporary studies show that brand names tend to elicit a distinctive set of neural processes compared to other lexical units. In other words: brand names seem to belong in a word class of their own.
“Brand names seem to have a special neurolinguistic and psycholinguistic status: they appear to be located in the mental space between common nouns and personal names in the mental lexicon.” (The Mental and Neural Representation of Names: A Cognitive and Economic Point of View. Katalin Reszegi, University of Debrecen, 2019.)
Findings such as this one seem to imply that linguistic cues and overall context allows us to process brand names differently from other types of names. This has been shown in experiments that chart the effect of brand names on the brain. These effects do not necessarily merely hinge on whether a brand name is in fact used as a brand name or not, but whether it is presented as an example of one in the totality of context.
Even the fabric of the name itself seems to be enough to gauge whether it is a more likely brand name than not. A similar idea was made popular by the psychologist Eleanor Rosch through her “prototype theory”, which stipulates that conceptual mental categories contain more central and less central members.
Recent linguistic research implies that the various levels of linguistic categories (even word classes) are also organized in this way. This suggests that there is such a thing as “brand-nameness” and that the motives for selecting a name may therefore inherently and cognitively overlap across brand name users.
But while concepts expand and evolve in the realm of science, legal notions may as noted tend to settle in ways that are predominantly practical.
The first requirement of the UDRP is for instance that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. But orthographic similarity (text convention) is far from an exhaustive measure.
This is sometimes recognized in UDRP decisions where meaning is significantly transformed when a letter is replaced. Other times, the complications that arise from a side by side visual inspection are brushed aside.
In case the trademark is known and distinctive it may be exclusively useful to apply the “looks like a duck” criterion. “Coca-Cola” vs “Coca-Kola” may be straightforward. But as soon as examples start to elicit meaning or utilize formal convention that does not necessarily originate from a specific trademark, decisions may turn hairy if they merely focus on letter-by-letter comparison.
The reason is yet again a divide between practice, circumstance, and existing knowledge. Linguists by and large consider reading and writing to be novel and auxilliary devices, peripheral to language proper. For a trademark adjudicator it’s often the matter at hand.
Of course, text may seem like the subject matter. Word marks consist of text, so the demarcation may seem natural. But text is merely one narrow medium through which brand names are conveyed. The creation of them and the interpretation of them relies on language capacity, which is not dependent on medium. This is the underlying reason why letter by letter comparisons of similarity may be inherently misleading.
“Book” (the noun) and “book” (the verb) are for instance orthographically and phonetically identical. They are so called “homophones”. That they nevertheless have distinct meanings implies that the capacity to re-interpret the same unit based on context is a ubiquitous ability.
Knowing when to ignore similarity and when to reinterpret it is a built in skill for any literate human who does not suffer from neurological disorder. When a letter is omitted, replaced or added, we adapt. It would not be implausible if the same held true in the realm of brand names.
Staying in the realm of orthography, here’s an exerpt from a recurring social media meme that illustrates how the mind can virtually ignore spelling if it does not detect ambiguity. All to achieve the goal of comprehension.
“I cdnuolt bleveiee taht I cloud aulacity uesdnatnrd waht I was rdanieg. The phaonmneal pweor of the hmuan mnid, aoccdrnig to a rscheearch at Cmabrigde Uinervtisy, it dseno’t mtaetr in waht oerdr the ltteres in a wrod are, the olny iproamtnt tihng is taht the frsit and lsat ltteer be in the rghit pclae. I awlyas tghuhot slpeling was ipmorantt!”
Similarly, vowels may be no big deal. PPL CN RD THS JST FN WTHT VWLS.
Even if we should recognize that the narrow realm of orthography is the appropriate measure for ascertaining similarity, scientific findings caution that we should tread carefully. A psycholinguistic study from the University of Windsor shows that if a novel brand name is closely similar to a common word, it may be more efficiently accessed during memory retrieval processes.
“High orthographic neighbourhood nonwords did show better performance than low orthographic neighbourhood nonwords regardless of amount of exposure. In fact, they outperformed their low orthographic neighbourhood nonwords in both exposure trials. Given these findings, the creation of novel brand names from nonwords taken from a high orthographic neighbourhood may be a useful practice.” (Schmidt, Darren, “Psycholinguistic Investigations of Brand Names via Word Recognition and Memory Experiments” (2011). Electronic Theses and Dissertations. 497.)
To put it bluntly, experiments show that regularity in the form of letter-by-letter adherence of a non-word to that of frequently used words has measurably positive effects in a brand name context. This potential brand name principle consequently has nothing to do with dictionary inclusion. It however depends on the very same orthographic similarity that in the context of the UDRP is considered the basis for a cybersquatting claim.
As a result, the legacy idea of sticking to letter-by-letter comparison when establishing confusing similarity may demonstrably cause generally negative effects, since an indiscriminate focus on superficial similarities may inhibit well informed design and adoption of novel brand names at large.
It is no great leap of the imagination that other features inherent to “nonsensical” language may also influence brand name appeal. In fact, this seems to be the general consensus. The possibility of other context-free brand name principles may have implications for all professions involved with names, and indeed this is what linguists expect to find.
“Different linguistic features (phonological, semantic, morphological and even orthographical characteristics) of the brand name form may have an effect on its processing and consolidation in long term memory.” (The Mental and Neural Representation of Names: A Cognitive and Economic Point of View. Katalin Reszegi, University of Debrecen, 2019.)
In addition to linguistic experiments on form, there are also important findings related to the frequency and use of figurative language. In the context of a dictionary, this creative aspect of language use is a second class citizen. Literal meaning is the focus and figurative language the informal exception.
In the grand scheme of creative natural language, this pecking order is not as obvious. In case we need to express something new, chances are that we will find a way to do so. In a brand name environment, it’s the standard mode of semantic expression to be figurative and suggestive.
One study found that in a corpus of 535 film titles of Oscar Best Picture Nominees, virtually all displayed some form of figurative language, and very few were considered to be merely literal. The corpus spans almost a century, and the tendency is remarkably consistent over time.
“A total proportion of 94.2% are figurative titles, comprising of 5.3% (4.9%MS & 0.4%MM) metaphorical titles, 85.7% (74.9%MTS & 10.8%MTM) metonymic titles and 3.2% hybrid titles, while literal titles occupy a small proportion, 5.8% of the whole corpus.” (A Cognitive-pragmatic Approach to Metaphor and Metonymy in Brand Names: A Case Study of Film Titles, Winnie Huiheng Zeng, The Hong Kong Polytechnic University, 2019.)
New knowledge about the world seems to prompt us to employ a fascinating array of naming mechanisms. Many of which are not explicitly known. Brand names are no different, and the main learning when it comes to our use of analogy in language may be that it is not an obscurity or a freak of nature, but ubiquitous. The reason is not chance or a tendency for artfulness, the way the device may predominantly tend to be described.
The reasons that we use metaphor and metonomy to the extent we do are cognitive-pragmatic. We are predisposed to employ it as a way to convey and interpret meaning. Figurative expressions are a generic trait that is extremely functional, and studies show that the amount of information that can be compressed into a single metaphor make them astoundingly economical compared to literal language.
“Compression is a phenomenon that allows human beings to control long diffuse chains of logical reasoning and to grasp the global meanings of such chains. So-called Vital Relations, including Cause-Effect, Change, Time, Identity, Intentionality, Representation, and Part-Whole, can apply across mental spaces, and also define essential topology within mental spaces.” (Fauconnier, Gilles. Compression and Global Insight. Cognitive Linguistics, Vol. 11, No. 3-4, pp. 283-304, 2000)
Compounding of words is consequently one of the main sources of lexical innovation and renovation. It heavily relies on our ability to combine and reinterpret what is already known and is one of the main means through which language is allowed to cover whatever it is that we wish to express. If it did not exist, natural language would not exist. We would have the cards we were dealt and they would forever be tied to the same specifics.
But the goal of a new expression is not to “make sense” in the sense of conformity to existing standard; it’s to “make sense” in the sense of the novel thing it represents.
Due to their inherent brevity and their goal to be unique, brand names tend to rely even more heavily on metaphor and metonymy than expression at large. The reason is that the benefits of figurative language are even more practical in a context where it is the main idea and practical necessity to offer something new. A novel expression that demands to be processed creates and strengthens new associations. It relies on a cognitive effort that in turn may lead to valuable attention, recognition and identity creation. That is arguably the fundamentals of what is called branding.
One of the objective benefits of not being merely literal is the diverse range of thoughts a figurative expression is allowed to evoke. Thoughts evoked are the currency of a novel brand name. This feature is called “openness”. In this sense, the goal is to be ambiguous but not too ambiguous. Famililar but not too familiar. Disctinctive but not too distinctive.
For the reasons mentioned, and as new products and services emerge, companies increasingly rely on linguistic strategies to create effective brand names. Figurative language, particularly in compound words, is a staple strategy.
These are strategies that are not exclusive to the specific business that may coin some specific specimen, but generally available, generic, modes of linguistic capacity. As such, it may be a dangerous notion to assume that something unique and distinctive is necessarily exclusive by design. The language apparatus allows anyone to field new options, and these new options do often overlap due to the way our minds work and the way the world works.
In cases where clear intent to target is hard to corroborate, the reasonable limits of the notion of “willful negligence” sometimes fall on a UDRP panel to triangulate.
If names are a product of generic mental capacities – should anyone merely registering a domain name they find appealing be obligated to field extensive trademark searches and in turn interpret them correctly? Should a brand name expert who acquires domains for resale curb their enthusiasm when they find an appealing option if there is a wayward match in the trademark database that uses perhaps one of several possible meanings? What would that mean for name availability in a competetive market? How would new brands emerge?
The connection between theory, scientific findings and actual circumstance should be obvious. Generic principles related to brand names are the reason that literal meaning that commonly relate directly to the intended use is a globally undesirable feature for brand names in general.
Names naturally gravitate towards distinctiveness and non-literal description. This feature is part of the package for all humans and is therefore likely to culminate in the selection of similar options.
That this is the way it works is consequently not an effect of the trademark regime. Name users don’t select non-literal names because they may be protected as trademarks. They select them because they are human language users that are inherently capable to realize what is functional in context.
The trademark regime builds on this nature of expression in names, not the other way around, and perhaps this could be more aptly recognized, in the light of updates available.
About the Author:
As the founder and CEO of Next Venture, a domain acquisition brokerage and naming firm, I help entrepreneurs and businesses find and secure their desired brand names on the internet. As a consequence I also operate a portfolio of domain names that serve as viable naming options in different niches and industries.
About the Author: