Decline of the Dictionary

by Robert Hartwell Fiske

1 December 2003

This article, and the response that follows, originally appeared in the pages of The Vocabula Review and is reprinted here with permission. Fiske is the editor of The Vocabula Review.

The new slang-filled eleventh edition of “America’s Best-Selling Dictionary,” Merriam-Webster’s Collegiate Dictionary (Frederick C. Mish, editor in chief), does as much as, if not more than, the famously derided Webster’s Third International Dictionary to discourage people from taking lexicographers seriously. “Laxicographers” all, the Merriam-Webster staff reminds us that dictionaries merely record how people use the language, not how it ought to be used. Some dictionaries, and certainly this new Merriam-Webster, actually promote illiteracy.

Several years ago, the editors of The American Heritage Dictionary ("America’s Favorite Dictionary") caused a stir by deciding to include four-letter words in their product. Since the marketing strategy of including swear words has now been adopted by all dictionary makers, Merriam-Webster, apparently not knowing how else to distinguish its dictionary from competing ones that erode its marketing share, has decided to include a spate of slang words in its eleventh edition. There’s nothing wrong with trying to distinguish their product, of course, but when it means tampering with the English language — by including idiotic slang and apparently omitting more useful words—it’s reprehensible.

Merriam-Webster proclaims it has added some ten thousand words to its Collegiate Dictionary. To do so, as a company spokesman admitted, “some words had to be kicked out” of the earlier edition. More interesting than this new edition would be a book of the words abandoned. Were they sesquipedalian words that few people use or know the meaning of; disyllabic words that few people use or know the meaning of? It’s quite true: people are increasingly monosyllabic; after all, many people today prefer dis (included in the Collegiate tenth and eleventh) to disparage or disrespect or insult. And now, in the eleventh, there is also the equally preposterous def, another word, Merriam-Webster assures us, for excellent or cool (which among many younger people today, is also spelled kool and kewl, and though both words may have as much—or as little—currency as def, neither, curiously, Merriam-Webster saw fit to include in their compilation).

What word did Merriam-Webster decide to omit to make room for the all-important def? What word did they decide to omit to make room for funplex (an entertainment complex that includes facilities for various sports and games and often restaurants)? What word did they omit in order to add McJob (a low-paying job that requires little skill and provides little opportunity for advancement)? What words did they omit in order to add headbanger (a musician who performs hard rock), dead presidents (United States currency in the form of paper bills), phat (highly attractive or gratifying), and Frankenfood (genetically engineered food)? Frankly, I rather like the coinage Frankenfood. But if people do not enjoy or feel comfortable eating genetically altered foods, which I suspect is likely, the word will be fleeting. Almost all slang, the people at Merriam-Webster should know, is ephemeral. Most of the slang added to the eleventh edition will never see the twelfth—or ought not to. Consider this paragraph from the Merriam-Webster site:

Many new words pass out of English as quickly as they entered it, the fad of teenagers grown to adulthood, the buzzwords of the business meetings past, the cast-off argot of technologies superceded [sic], the catchy phrases from advertisements long forgotten. It is likely that many such ephemeral coinages will never be entered in dictionaries, especially abridged dictionaries where space (or time or money or all of the above) are at a premium. That does not mean, however, that the words did not exist, simply that they did not endure.1

Odd that Mish and his minions would then agree to the addition of so much slang to the eleventh edition. (Odder still, perhaps, that slang like far-out and groovy, even though the popularity of these words has been much reduced over the years, are still entries in the Collegiate.2) But, as I say, it’s a marketing strategy. It’s not lexicography. These slang terms are not meant to improve the usefulness of their product; they’re meant to help sell “America’s Best-Selling Dictionary.” Slang, Merriam-Webster believes, sells.

Lexicographers are descriptivists, language liberals. People using disinterested when they mean uninterested does not displease a descriptivist. A prescriptivist, by contrast, is a language conservative, a person interested in maintaining standards and correctness in language use. To prescriptivists, disinterested in the sense of uninterested is the mark of uneducated people not knowing the distinction between the two words. And if there are enough uneducated people saying disinterested (and I’m afraid there are) when they mean uninterested or indifferent, lexicographers enter the definition into their dictionaries. Indeed, the distinction between these words has all but vanished owing largely to irresponsible writers and boneless lexicographers.3

Words, we are told, with the most citations are included in the Merriam-Webster dictionaries. Are then words with the fewest omitted, or in danger of being omitted? Merriam-Webster’s Collegiate Dictionary includes alright,4 but what word was not included, or “kicked out,” so that an inanity, an illiteracy like alright could be kept in? Boeotian is not in Merriam-Webster’s; is alright truly a better use of space for a “college dictionary”? I think not.

All it takes for a solecism to become standard English is people misusing or misspelling the word. And if enough people do so, lexicographers will enter the originally misused or misspelled word into their dictionaries, and descriptive linguists will embrace it as a further example of the evolution of English.

Merriam-Webster’s laxicographers, further disaffecting careful writers and speakers, assign the meaning reluctant to the definition of reticent. Reticent means disinclined to speak; taciturn; quiet. Reluctant means disinclined to do something; unwilling; loath. Because some people mistakenly use reticent to mean reluctant, dictionaries now maintain reticent does mean reluctant.

There are other examples of Merriam-Webster’s inexcusably shoddy dictionary making. According to the dictionary’s editors:

• The spelling supercede is a variant of supersede

• The spelling accidently is as valid as accidentally

• The verb predominate is also an adjective meaning predominant

• enormity means the same as enormousness

• infer means the same as imply

• hone in means the same as home in

• flaunt means the same as flout

• peruse means not only to examine carefully but to read over in a casual manner

• incent means incentivize, itself ungainly

• impactful is listed as an adjective of impact

• The pronunciation of nuclear is NU-klee-er or NU-kya-ler

Merriam-Webster’s Collegiate Dictionary actually promotes the misuse of the English language.

Of course, it’s in the financial interest of dictionary makers to record the least defensible of usages in the English language, for without ever-changing definitions—or as they would say, an evolving language—there would be less need for people to buy later editions of their product.

A few months ago, in The Vocabula Review, I offered the following TVR Poll:

Dictionaries should be much more prescriptive, far less descriptive, than they now are.

• Yes! More than that, laxicographers promote the dissolution of the English language (and even society) with their misguided liberality: 19%

• Quite so. Dictionary compilers need to maintain, and perhaps even decide, distinctions between words; they need to guide us on matters of usage: 27%

• A mix of guidance and license is probably the best course—it’s also the commonest course: 22%

• Lexicographers are necessarily descriptivist for their job is simply to record how people use the language: 28%

• Obviously, we all must bow to the definitions and spellings found in the dictionary: 4%

As you see, 68 percent of the respondents rejected the strong descriptivist idea of dictionary making. Still more heartening to me is that only 4 percent of the people who participated in this poll believe that the definitions and spellings a dictionary offers are those we are necessarily bound to. More than that, though, the new Merriam-Webster is a sign that dictionaries, at least as they are now being compiled, have outlived their usefulness. Dictionaries are no longer sacrosanct, no longer sources of unimpeachable information. Dictionaries are, indeed, no longer to be trusted.

That a president can ask Is our children learning? a basketball star can use the word conversate, a well-known college professor can say vociferous when he means voracious, and another can scold a student for using the word juggernaut because she believes it means jigaboo is disturbing. But these are precisely the sorts of errors, if enough people make them, that the staff at Merriam-Webster will one day include in their dictionaries:

• child n, pl or sing children.

• conversate to exchange thoughts or opinions in speech; to converse.

• vociferous 1 marked by or given to vehement insistent outcry. 2 voracious.

• juggernaut 1 a massive inexorable force, campaign , movement, or object that crushes whatever is in its path. 2 usu offensive jigaboo; black person.

Over the last forty and more years, linguists and lexicographers have conspired to transform an indispensable reference work into an increasingly useless, increasingly needless one.

1 From the Merriam-Webster website: Passing Fancies.

2 Merriam-Webster does publish a number of “specialty dictionaries,” including Merriam-Webster’s Biographical Dictionary, Merriam-Webster’s Geographical Dictionary, Merriam-Webster’s Dictionary of English Usage, Merriam-Webster’s Dictionary of Synonyms, The Merriam-Webster Dictionary of Quotations, but they have not published a dictionary of slang. Since the editors at Merriam-Webster are so enamored of slang, let them publish a specialty dictionary of it.

3 Lexicographers often try to justify the inclusion of solecisms like disinterested (in the sense of uninterested) in their dictionaries by citing examples from authors who have used these words solecistically. The obvious response to this is that authors—well known or not—are not immune from misusing and misspelling words and have forever done so. In the seventeenth century, according to the OED (a dictionary we can still respect), disinterested did have the meaning “without interest or concern,” but for the last three hundred years, the word has meant “impartial or without bias.”

4 Though Merriam-Webster’s is likely the most descriptivist dictionary on the market today, many of my criticisms of it are also applicable to other popular college dictionaries. The American Heritage College Dictionary, The Oxford American College Dictionary, and Microsoft Encarta Dictionary, for instance, all include, and thereby sanction, the solecism alright.

Word of the Month: Nautical

1 November 2003

Two weeks ago the movie Master and Commander, starring Russell Crowe, opened in theaters across the United States. The movie, based on the popular series of novels by Patrick O’Brian, is about the fictional adventures of Captain Jack Aubrey and his friend physician and spy Dr. Stephen Maturin. They sail together aboard the HMS Surprise, taking on Napoleon’s Navy and engaging in all sorts of adventures on the high seas.

O’Brian’s books and the movie they inspired are very faithful to details about life, including language, aboard ship in the age of sail. It is swashbuckling adventure to be sure, but pretty good history as well. Because the movie, which took in over $25 million at the US box office during its first weekend, will engender questions and enthusiasm for the language of the sea, our word of the month is:

nautical, adj., relating to sailing, ships, sailors, or the sea, 1552. The English word is adopted from the Middle French nautique, which is from the Latin nauticus, which in turn is from the Greek word for sailor.

On the Wordorigins.org discussion forum, we frequently debunk words and phrases that have false nautical origins attributed to them. We do this so often that one participant, Dr. Techie, invented the facetious acronym CANOE, meaning Conspiracy to Attribute Nautical Origins to Everything. In the face of all this one can easily forget that there are a great number of English words and phrases that do in fact have their origins in the sea.

What follows is a list of words and phrases that all have their origins in nautical language. The nautical origins of these terms will not be readily apparent to many. Where several dates are given, the first is for the general or figurative use and the second (earlier) is the date of appearance in nautical jargon.

A1, adj., prime, first class. A1 was first used by Lloyd’s Register, a listing of ships in commission by the famed insurance company, to denote vessels in prime condition. 1837 for nautical use. In general use from 1851.

albatross, n., a mark of misfortune, a burden. Not really a nautical term, but rather from literature about the sea. The sense is a reference to Coleridge’s 1798 poem The Rime of the Ancient Mariner in which the mariner kills an albatross and it brings misfortune upon him and his ship:

Instead of the cross, the albatross
About my neck was hung.

The metaphorical sense dates to 1936. The name of the bird is an alteration of the Spanish alcatraz, pelican, inaccurately applied in English to the petrel, especially Diomedea exulans, the giant albatross.

aloof, adj., distant, either physically or emotionally. Originally, a nautical command meaning to sail closer to the wind. Probably from the Dutch loef, windward. 1549.

broadside, n., an assault or attack in force, to fire a broadside. The term originally referred to the side of a ship, 1591, or somewhat later to a coordinated volley of cannon fire from all the guns on one side of a ship.

by and large, adv., across a range or gamut, 1669. Originally, a reference to a ship that sails well both close hauled to the wind, or by, and away from it, or large.

caboose, n., a railroad car, usually at the end of a train, used as a work and break area for the crew, 1861. The word is from the Dutch kabuis and is nautical in origin. It was originally a galley built on the deck of a ship or the hut that covered this kitchen, 1769.

careen, v., to lean, to tilt, to speed unsteadily, 1600. Originally, to turn a ship on its side so maintenance can be performed. From the French carène, keel.

close quarters, n., in immediate contact, especially with a foe, 1753. (The obsolete variant close-fight is older, dating to 1662.) Originally a term for barriers erected on deck behind which a crew could retreat during attempts tot repel boarders.

copper-bottomed, adj., genuine, authentic, trustworthy, 1795. A metaphorical extension of the nautical practice of sheathing ship’s bottoms in copper plating, to prevent the accumulation of shells and weeds that slow a ship.

dido, n., a caper or prank, 1807. Also, cut a dido, to commit a prank. All right, this one is probably not nautical in origin, but I did the research to debunk it and want to slip it in. It is often said that this term is from the HMS Dido, a ship so fast and maneuverable that it could literally run circles around the other ships in the Mediterranean fleet. Unfortunately for this great story, the ship in question was not launched until 1896, nearly a century after the term first appears.

cut and run, v.phr., to leave hurriedly, 1704. Originally, a nautical term meaning to make sail by cutting the cable instead of weighing anchor. The metaphorical usage dates to at least 1861.

cut of one’s jib, n., one’s appearance, 1823. The phrase started life as a sailor’s catchphrase. A jib is a triangular staysail stretched from the jib-boom or bowsprit to the fore-topmast. The word is of unknown origin, but dates to 1661.

deep six, n. & v., death, the grave, or to dispose of, 1929. The origin of this term is uncertain, but is widely thought to be a reference to burial at sea at a depth of six fathoms.

fathom, v., to penetrate, to comprehend. The immediate predecessor of this verb is the nautical verb meaning to take a sounding, to measure the depth of water under the keel. The word is ancient, coming from the Old English fæðm, meaning literally embracing arms, or figuratively grasp or power. Also quite early, c.1000, the word came to mean a measurement the length of a man’s outstretched arms. This was later fixed at six feet. This was a general unit of linear measure, but survives today chiefly in nautical use for depth of water.

figurehead, n., the titular head of an organization or community, one with the trappings of power but no real authority. A reference to the ornamental carving, often a bust or full-figure of a woman, on the bow of a ship. 1765 for the literal, nautical use; 1883 for the metaphorical sense.

first rate, adj., excellent, unsurpassed, 1666. Originally a term referring to the largest class of naval vessels, esp. those in the Age of Sail that carried 74-120 guns.

flotsam and jetsam, n., detritus, debris, esp. that which is floating, odds and ends. Flotsam is from the Anglo-Norman floteson (cf. modern French flottaison), the wreckage of a ship found floating, 1607. Jetsam is a syncopated form of jettison and refers to cargo and goods thrown overboard from a ship in distress, 1570. The terms are distinct because in maritime law different liabilities apply. Owners of surviving cargo on a ship are liable for the loss of the owners of the jetsam (their cargo was saved because the others’ were thrown overboard), but not for flotsam, which was lost due to accident.

gangway, intj., a demand to clear the way, either for a person carrying a burden or for one of higher social rank (e.g., an officer), 1925. The general sense of the noun gangway is not nautical in origin. It refers to any passageway. It dates to c.1000 and is a combination of the Old English gang, a road or passage (cf. German gehen) + way. Nautical use of the noun gangway dates to 1688, when it referred to a platform between the forecastle and the quarterdeck. Use to mean the opening in the bulwarks for entering or leaving a vessel dates to 1780.

groggy, adj., befuddled, tired, weak, as if from a fight or drink, 1832. Older use, from 1770, means intoxicated. Grog is a mixture of rum and water once served to sailors in the Royal Navy. The name comes from the nickname of Admiral Edward “Old Grog” Vernon who in 1740 first ordered the mixture to be served to sailors in the place of neat spirit. Vernon’s nickname is from the grogram coat he often wore. Grogram is a mixture of silk, mohair, and wool which has waterproof qualities. Grogram is from the French gros grain, large or coarse grain, 1562. The Royal Navy abolished the rum ration in 1970.

hand over fist, adj., with ease, quickly, esp. used in reference to financial gain, 1825. The phrase originated at sea in reference to the ease and speed with which experienced sailors climbed rigging. By the late 19th century the phrase was being used metaphorically.

hard and fast, adj., rigidly adhered to, 1867. The phrase originally was used to describe a ship firmly attached to a wharf or shore, unmoving.

hard up, adj., in difficulty, esp. financial, 1821. The term originated in 1612 as a nautical command to turn the ship away from the wind as fast as possible, a turn usually made in desperation to avoid a collision.

high and dry, adj., stranded, 1822. The phrase is from the metaphor of a ship that has been beached above the surf line.

hulk, n., a large person, a large object, 1597. The word hulk originally meant a ship, c.1000. It is an Old English word, hulc, that is related to the Medieval Latin hulcus. Cognates are found in many European languages and the ultimate origin is obscure. Shakespeare was the first to apply the term metaphorically to a person in Henry IV, Part 2.

laid-up, adj., disabled. This one is from 1769 and originally referred to a ship that was moored for repairs or because it was retired from service.

leeway, n., freedom to act as one sees fit, 1827. The metaphorical sense, which dates to the early 19th century is from a literal nautical sense from 1669. This literal sense refers to lateral drift of a ship in the direction of the wind or the downwind (leeward) distance a ship requires to maneuver. A ship with a lot of leeway has no other ships or objects leeward and is free to maneuver without fear of collision.

log, n. & v., a journal or record, to record in a journal or record, 1825 for the noun, 1823 for the verb. No, this word is not originally nautical, but this particular sense derives from nautical usage. The word meaning a block of wood dates to Middle English, the late 14th century. The origin is unknown, but it is related to clog, another word that originally meant a block of wood. The nautical sense dates to 1574 and originally referred to a block of wood tied to a line that would be thrown astern of a vessel underway. By measuring the line paid out over a fixed period, the crew could determine the ship’s speed. The sense of a journal is transferred from entering these measurements into the ship’s journal or, as it came to be known, the log. The computer terms logon, login, logoff, and logout also come from this sense.

loose cannon, n., an unpredictable person or thing, something uncontrollable that is liable to cause damage, 1900. This one is not actually from nautical jargon, but it comes from a nautical metaphor. The term was popularized by Theodore Roosevelt, who wrote: “I don’t want to be the old cannon loose on the deck in the storm.”

lopsided, adj., leaning to one side, 1711. This term was first used to refer to ships that listed to one side. Lop, a verb meaning to droop, dates to 1578. It is perhaps echoic in origin, related to lob and also the source for loppy.

lower the boom, v., to stop, to defeat, 1950. This US slang phrase is nautical in origin. A boom is a spar that holds a sail in place, from the Dutch, 1662, and akin to the word beam. To lower the boom on someone is to metaphorically bring a beam down upon their head.

mainstay, n., the chief support, something or someone on whom something relies, 1604. In nautical jargon, a stay is a rope that supports and holds in place a mast. The mainstay is the rope that holds the mainmast in place, usually running from the top of the mainmast (maintop) to the foot of the foremast. The nautical term mainstay dates to 1485 and the generic stay to sometime after 1100.

headway, n., progress, 1775. In nautical jargon the head is front, or bow, of the ship. So to make headway is to make forward progress. Nautical usage of headway dates to 1748 and head to 1485. The sense of a latrine or toilet is also nautical, dating to 1748, and comes from the fact that latrines were usually placed in the bows—so the wind from astern would carry the excretions away from the ship.

in the offing, adj., soon, close at hand, 1779.  In nautical terms an offing is a position at sea, but within sight of shore, 1627.

pipe down, v., to stop talking, to become quiet, 1900. On board ship, the boatswain would use a pipe to signal various commands. To pipe down was to dismiss the watch and send them to bed, 1833.

scuttle, v., to ruin, destroy, or otherwise make useless, 1888. In nautical jargon, a scuttle is a hole drilled through part of the ship, 1497. The verb means to drill or create a hole in the bottom of a ship in order to sink her, 1642. The word is related to the French écoutille and the Spanish escotilla, but the exact relationship is uncertain.

scuttlebutt, n., gossip, rumor, 1901. On board ship, a scuttlebutt is a cask with a hole cut in it (a butt that had been scuttled) containing drinking water for the crew, 1805. The figurative use of the term comes from the idea that sailors would gather around the scuttlebutt and gossip, much like modern office workers talk around the water cooler.

shove off, v., to depart, to leave, 1844. Nautical use of shove meaning to launch a boat is ancient. The term appears in Beowulf:

guman ut scufon
weras on wil-sið    wudu bundenne.
(then shoved out
away with a will    in their wood-sheathed ship.)

The use of off, instead of out, dates to 1600.

skipper, n., leader, 1830. This is one of the commonly recognizable nautical terms dealt with here. Nautical use meaning the captain or master of a ship dates to 1390. It is from the Middle Dutch or Middle Low German schipper.

skylark, v., to engage in horseplay, to frolic, 1809. This term is not nautical in origin, but rather comes from the name of the bird which is known for singing as it flies. Early uses, however, are nautical and refer to antics in the rigging of a ship.

slush fund, n., money that is not officially accounted for, esp. money used for bribes, 1874. In nautical jargon, slush is the fat and grease from boiling meat, 1756. It is the same word as that for partially melted snow. It is of unknown origin, but is probably related to sludge and slosh. Slush would be sold when in port and the money would be distributed among the crew. Nautical use of slush fund dates to 1839.

stem to stern, adj., complete, whole, 1697. The stem is another name for the bow of a ship, or more specifically to the piece of timber to which the planks are fastened, 1538. By extension, the phrase is used figuratively to denote the entirety of something.

taken aback, adj., surprised, discomfited, 1842. In nautical jargon, to be taken aback is to suddenly have the wind shift, either through bad steerage or sudden weather change, so that it is coming over the bow and giving the ship sternway, 1754. To be taken aback can dismast a ship.

Book Review: The Grouchy Grammarian, by Thomas Parrish

1 November 2003

Regular readers of A Way With Words know that I have little tolerance for those that arbitrarily declare their own styles and preferences to be grammatically “correct.” As a result, most grammar manuals do not fair well in these pages. But Thomas Parrish has written a grammar book that does not do this. He recognizes that usage trumps personal preference and that there is a difference between quality, aesthetically pleasing prose and prose that is grammatically correct.

Parrish does this with a rather fun conceit. He creates the character of the “Grouchy Grammarian,” supposedly an old friend of Parrish. Parrish plays Boswell to the fictional grouch’s Johnson, recording his observations and opinions. As a result the book is more fun than many sterile grammar manuals and allows Parrish to create a balance between the traditional enmity between descriptivist and prescriptivist positions. The Grouch grudgingly concedes, for example, that the distinction between healthful and healthy has largely disappeared.

The core of the book consists of examples from current media (newspapers and magazines, mostly, with some television quotes included) of questionable or poor usages. Parrish’s Grouch laments such forms as the reason why… (redundant, why is inherent in reason), misuses of between and among (contrary to popular belief, between is not limited to two parties, but expresses a type of relationship), and misuse of subject-verb agreement. The examples are largely negative ones, hence the book’s subtitle of A How-Not-To Guide to the 47 Most Common Mistakes in English Made by Journalists, Broadcasters, and Others Who Should Know Better.

While Parrish’s conceit of the Grouch makes for better reading than most grammar manuals, it does limit the book’s utility. Because it is not organized alphabetically, the book is less useful as a reference. Modeled more on Strunk & White’s classic, it is much longer than that predecessor, making it too unwieldy for reference use. It is not a substitute for a good usage manual.

But still, if one enjoys reading books about grammar and usage (and frankly there are more of us that do than care to admit it), this is a diverting and entertaining read.

Softcover, 186 pp, John Wiley & Sons, 2002, ISBN: 0965730964, $19.95

Dept. of Legal Affairs: Intellectual Property, Part 2: Trademark

1 November 2003

In this two-part article, we examine the two types of intellectual property that relate to language, copyright and trademark. There are two other types of intellectual property, patent and trade secrets, that apply to physical inventions and commercial business information.

The point of intellectual property laws is to encourage the advancement of the art, science, and commerce by giving the creators of original works, ideas, and products a limited period within which they can exercise exclusive control over their works and derive profit from them.

In this second of two parts, we examine the concept of trademark and its effect on the language. We often hear of companies trademarking words and phrases, claiming them for their own. But can they do this, either realistically or legally? Can Fox News prevent someone (Al Franken, for instance) from using the phrase fair and balanced? Can Microsoft limit your use of the word windows? If you are named McDonald, can the McDonalds Corporation limit your ability to use your own name in your business? And how do trademark rights differ from copyright? There are many myths and misunderstandings regarding the concept of trademark; we hope to clear some of these up with this article.

The term trademark only dates to 1838, but the concept is far older. Traditionally, a craftsman would mark his products with a distinctive sign, so that customers could recognize his handiwork. This principle is the basic one behind the modern concept of trademarks, distinctive signs that identify a particular product or service.

Most commonly, trademarks are brand names or logos, but many other things can fall under the definition of trademark. Trademarks can include words, phrases, graphic symbols, shapes, sounds, letters, numbers, titles, fictional characters (e.g., the Maytag repairman) unique packaging (e.g., the Coca-Cola bottle), décor, and clothing. These last are often called trade dress.

Another term one often hears is service mark. A service mark is identical to trademark in all respects, except that it denotes a service provided instead of a product. Throughout this article the term trademark is assumed to include service marks and the term product to include services.

A key concept in trademark law is distinctiveness. The point of trademark law is to distinguish the products of one company from another. A trademark must be unique enough so that it can reasonably used as an identifier for the specific product.

What can be protected under trademark law?
To be protected, a trademark must be distinctive. Inherently distinctive trademarks include:

• Unique logos or symbols

• Words coined as product names (e.g., Kodak)

• Fanciful or arbitrary marks that are imaginative or surprising in context (e.g., Guess? jeans or Penguin Books)

• Suggestive or evocative marks that cleverly connote some aspect of the product (e.g., Roach Motel insect traps or Presto Valet dry cleaning)

Many product or business names, however, are not inherently distinctive. These include products named after:

• People (e.g., Joe’s Diner)

• Places or geographical references (e.g., Northern Plumbing Supply); but geographic names arbitrarily chosen to evoke images of a region can be distinctive, e.g., Arizona Iced Tea

• Ordinary descriptive terms (e.g., fair and balanced)

• Generic names for classes of products (e.g., Raisin Bran)

Generic names cannot fulfill the basic function of a trademark—that of distinguishing one’s product from those of one’s competitors. Makers of raisin bran cereal, for example, distinguish their product by adding their company name (e.g., Post Raisin Bran, Kellog’s Raisin Bran). Microsoft is currently in litigation trying to protect its Windows trademark from a Linux software manufacturer who claims that the word windows was in use to describe a layered user interface long before Microsoft produced their operating system and therefore others are free to use that term.

Non-distinctive names are less likely to be protected. If you own Speedy Delivery Service, there is probably little you can do to prevent a competitor from using the word speedy in their advertisements. Names that start out as non-distinctive may, however, attain distinction through public recognition or long use. A good example is Ben and Jerry’s ice cream.

Some types of trademarks are flatly prohibited or reserved. These include trademarks that:

• Are immoral, deceptive, or scandalous

• Disparage or falsely connect another person or institution with the product

• Comprise the flag, seal, or other insignia of the United States, the several states and municipalities, foreign nations, or simulate these things

• Use the name, likeness, or signature of a living person (or a deceased US president during the life of the widow) unless written consent is obtained

• Are likely to be confused with previously registered trademarks.

There are several situations where a trademark cannot be protected or loses its protected status. The most common ones are:

• Abandonment. When a product is discontinued and the trademark is not shifted to another product by the same manufacturer the trademark is no longer enforceable. In the United States, after three years of non-use a trademark is presumed to be abandoned. After that date, the original owner must prove that they had an intention to resume use of the mark in order to maintain protection.

• Genericide. The process of a trademark becoming the common name for an entire class of products is known as genericide. Once a trademark becomes a generic it is no longer protected. Cellophane, escalator, and thermos were all once trademarks but have lost their protection through genericide.

• Likelihood of Confusion. A trademark will not be registered or will lose its protection if it is deemed to be likely to cause confusion with other, existing trademarks.

• Weak Marks. These are simple descriptive terms, geographical descriptors, and surnames.

• Functional Features. This applies to product shapes or packaging. Trademark protection does not apply to functional aspects of the product. To the extent that the shape or packaging of a product is derived from its function, it cannot be protected. The shape of an automobile, for example, that is determined by efficiencies of aerodynamic flow cannot be trademarked. But features that are not determined by engineering principles, such as the distinctive grill of a BMW, can be trademarked.

When does trademark protection start and how long does it last?
Protection starts when the product bearing the mark hits the market. In the United States companies can file intent-to-use applications with the Patent and Trademark Office, in which case protection starts when the application is filed. If a company files an intent to use application, it generally has up to three years to market a product bearing the trademark.

Since trademark protection in the United States is federal, the commercial use the product is put to must be such that Congress can regulate it (i.e., it is or affects interstate or international commerce). Most businesses fall within this boundary (e.g., a restaurant that has serves patrons from out of state or a bicycle messenger service that delivers items originating from out of state), but occasionally there may be a product or service that is truly local, in which case its trademarks would not qualify for federal protection.

Unlike copyright, some US states have their own trademark laws. These, of course, vary from jurisdiction to jurisdiction.

Unlike patents and copyrights, trademarks are of potentially unlimited duration. The protection is perpetual, unless lost through abandonment or genericide. Registration, however, is of limited duration. Once registered, a trademark remains on the official register for ten years (20 years if registered before November 1989). Registrations can be renewed an indefinite number of times.

Who owns a trademark?
In the United States, the first to use a trademark is the owner. In most other countries, however, the first one to register the trademark is the owner.

What are the symbols that denote trademark status?
There are three major symbols used to denote the fact that a name or logo is trademarked. The first two are the TM and SM symbols, for trademark and service mark, respectively. These are used for unregistered trademarks. Anyone can slap a TM on their product name. The use of these symbols is not required for trademark protection, but their use can increase the amount of damages awarded if a violation is found to have occurred since the offender has less credibility in claiming they were unaware of the trademark.

The ® symbol, however, is different. This can only be used on trademarks that have been registered with the US Patent and Trademark Office. Failure to use the ® symbol on registered trademarks can result in a decrease of the protection afforded them.

Is there “fair use” for trademarks?
Yes. But first one must understand that trademark protection only extends to commercial contexts involving similar products. Outside of the product’s commercial context, one is free to use the trademarked words and phrases. Apple Computer has trademarked the term Apple, for example, but that does not keep the rest of us from using that word to refer to the fruit or in phrases like the apple of my eye. But if we were to sell computer products under that name, a lawsuit would quickly follow and no doubt be successful.

Even in the commercial context, though, there are situations where it is permissible to use a word or phrase that has been trademarked by another, even by a competitor. These include:

• Descriptive uses. If the trademarked term is descriptive, others can use it. For example, a candy maker can use the word crunch in their advertising without incurring a lawsuit because of the competing Nestlé Crunch bar.

• Comparative advertising. A company is allowed to name competing products in its advertising for comparative purposes.

• Journalism and commentary. Media stories are free to use the trademarks to refer to the products in articles and accounts.

• Parodies. One can make a joke about Microslack Windoze for example without fear.

The common theme in all these instances of fair use is that there is little chance of a customer confusing these uses with the company’s own products or advertising. Deceptive use of another’s trademarks is generally forbidden.

Fair use does not, however, extend to unlimited use of your own surname. One does not have an unalienable right to open a business under one’s own name. Someone with the name McDonald, for example, does not have the right to open a restaurant with that name because of potential confusion with the fast food chain.

Are there international trademark rights?
No. Unlike copyright, there is no body of international law that governs trademark. The laws can vary widely from country to country and registration in one country has no bearing on use in another. Occasionally, two nations will have signed a treaty that extends trademark rights in one nation to the territory of the other, but usually a company has to establish separate trademark rights in each of the countries where its products are marketed.

There is the World Intellectual Property Organization (WIPO) which centrally registers trademarks from its member states. But registration with WIPO is a courtesy and member states are not obligated to extend protection for WIPO registrations. All European Union countries are members of WIPO; the United States is not.

US trademark law does, however, recognize foreign trademarks that have achieved widespread international fame (e.g., Wimbledon).

So, does trademark law limit one’s ability to express oneself or to use specific words and phrases? Outside of advertising and other commercial communications, not to any significant degree. Trademark does not give ownership of words and phrases to particular individuals. Instead, it permits vendors to differentiate their products from those of their competitors in the marketplace and nothing more.

Word of the Month: Soviet

1 November 2003

The October Revolution is famous the world over. In October of 1917, Lenin and his followers seized control of the government of Russia, ushering in 75 years of Communist rule. But few today realize that the October Revolution actually happened in November. Tsarist Russia had not converted to the Gregorian calendar and while by traditional Russian reckoning the revolution took place in October, from the perspective of the rest of the Western world it happened in November. One of the first acts of the new Communist government was to change the calendar to bring it in line with the rest of the world.

So in honor of that event some 86 years ago this month, our word of the month is:

Soviet, n. & adj., an elected council that performs governmental functions. English use dates from 1917. Soviets operated at all levels of government in the Soviet Union, the highest being the Supreme Soviet or national legislature. The word literally means council in Russian. The noun was also used to mean a citizen of the Soviet Union. As an adjective, it is used to denote things associated with the Soviet Union.

The following terms are (mostly) of Russian origin or inspiration and are all associated with the Communist era. In English usage, these words are not obsolete or obsolescent; instead they still are very much in use. They are what lexicographers would call historical. They are only used in reference to the past.

Unless otherwise stated, the dates given are the term’s appearance in English usage. In most cases, the use of the word or term in Russian is older and often is not especially associated with Communism, but rather simply denotes some aspect of Russian culture or society. But in English usage, all these terms carry connotations of the Communist era.

Agitprop, n., agitation and propaganda, from the Russ. agit[átsiya] + prop[agánda], 1934. Agitprop was originally a department of the Russian Communist Party’s Central Committee with local branches.

Apparatchik, n., a Communist agent or spy, from the Russ. apparat + -chik, 1941. Apparat was borrowed into Russian from the German and was used to denote the Communist party machine.

Bolshevik, prop.n., a member of the Communist Party, from the Russ. meaning member of the majority, an early name for the Russian Communist party, 1917. Later meaning a person with subversive views, 1926. This name for the Communist Party was coined in Russian in 1903 when a vote during the second congress of the Russian Social-Democratic Workers’ Party gave Lenin’s faction a temporary majority. The party subsequently split, cf. Menshevik.

Cheka, prop.n., Russian secret police organization that existed from 1917-22, acronym from the Russ. Chrezvycháĭnaya Komíssiya or Extraordinary Commission (for combating Counterrevolution, Sabotage, and Speculation). In English use from 1921. Also chekist, a member of the Soviet secret police.

Comecon, prop.n., economic association of the Communist nations of Eastern Europe, acronym for the Council for Mutual Economic Assistance, the English name of the organization translated from the Russ. Ékonomicheskoĭ Vzaimopomoshchi, 1949.

Comintern, prop.n., the international wing of the Russian Communist Party which existed from 1919-43, an acronym for Com[munist] + Intern[ational], or Komintérn in Russian.

Commissar, n., a Communist Party member responsible for political indoctrination of a group, esp. a military unit, from the Russ. komissár, 1918. More general use of the term to mean one charged to act as a representative dates to the 15th century and is from the French commissaire, but the specific Communist sense is a re-borrowing from the Russian.

Cosmonaut, n., an astronaut, esp. a Russian one, from the Russ. kosmonaut, or space sailor, 1959.

Disinformation, n., deliberately false information, esp. that provided by a government to the media, calque of the Russ. dezinformatsiya. Russian word coined in 1949, English use from 1955.

G.R.U., abbrev., the foreign intelligence organization of the Soviet (now Russian) Ministry of Defense, the counterpart of the American Defense Intelligence Agency (D.I.A.), from the initials of Glavnoye Razvedyvatelnoye Upravlenie or Main Intelligence Administration.

Glasnost, n., a policy of being open to public scrutiny. The Russian word first appears in the 18th century in the sense of publicity. The sense of openness is first used by Lenin. It was used again in 1969 by Aleksandr Solzhenitsyn. The first use in English dates to 1971 in reference to Solzhenitsyn’s use of the word. In 1985, Mikhail Gorbachev declared that glasnost was an official policy of the Soviet Union.

Gulag, n., the Soviet system of labor camps and prisons, an acronym of glavnoe upravlenie ispravitel’no-trudovykh lagereĭ or Chief Administration for Corrective Labor Camps, 1946.

Intelligentsia, n., the intellectual elite of a society, from the Russ. intelligéntsiya, 1907.

Intourist, n., the Soviet state travel bureau, responsible for foreign visitors and tourists, from the Russ. Inturíst, abbrev. of inostránnyĭturíst, foreign tourist, 1932.

K.G.B., abbrev., Soviet intelligence and secret police organization (1954-91), abbrev. for Komitet Gosudarstvennoĭ Bezopasnosti or Committee of State Security. English use dates to 1960.

Kalashnikov, n., a Soviet-manufactured assault rifle, after its inventor, Mikhail Timofeevich Kalashnikov (b.1919). His most famous design is the AK-47, or Avtomat (automatic) Kalashnikov design of 1947. English use of Kalashnikov as a name for the rifle dates to 1970.

Komsomol, n., Communist youth organization, acronym for Kommunistícheskiĭ Soyúz Molodëzhi or Communist Union of Youth, 1934.

Kremlin, n., the medieval fortress in the center of Moscow that houses the upper echelons of the Soviet (now Russian) government. English use is from 1662 and is borrowed from French, which in turn is from the Russ. kreml or citadel. Hence Kremlinology, the study and analysis of the Soviet government, particularly by Western intelligence services, 1958.

Kulak, n., a well-to-do farmer from pre-revolutionary times, later a peasant who grows food for profit, from the Russ. word for fist, signifying a tight-fisted person, in English use from 1877.

Kulturny, adj., cultured, civilized, 1955; its opposite is nekulturny, unenlightened, boorish, 1959.

Liquidate, v., to make someone disappear, to murder, from the Russ. likvidírovat´ to liquidate or wind up one’s affairs, 1924. The legal and business senses of the term date to the 17th century and are directly from Latin, but the sinister sense is from the Russian usage.

Menshevik, prop.n., a more moderate faction of the Russian Social Democratic Workers’ Party than the Bolsheviks, from the Russian for member of the minority, in Russian use from 1903, English use from 1907. The Menshevik Party was suppressed in 1922.

MiG, abbrev., a Soviet aircraft design bureau responsible for the creation of a number of Soviet fighter aircraft or aircraft manufactured by that bureau, abbreviation for the names of M[ikoyan] + i (and) + G[urevich], the heads of the bureau, 1942.

Molotov cocktail, n., a makeshift incendiary device consisting of a glass bottle or other breakable container filled with gasoline and stopped with a cloth fuse, 1940. Probably from the Finnish Molotovin koktaili, and used by Finns against Soviet tanks. Named after Soviet Foreign Minister Molotov, who led the disastrous 1939-40 winter campaign against Finland. (Despite overwhelming superiority in numbers, the Soviets suffered horrific losses at the hands of the Finns, but eventually did win through sheer numbers.) Also, Molotov breadbasket, a WWII-era term for a container filled with scatterable bombs, probably from the Finnish Molotovin leipäkori, after a speech in 1939 where Molotov said he would bring bread, not bombs, to Finland. Molotov was the revolutionary name of Vjačeslav Mihajlovič Skrjabin (1890-1986), molot is Russian for hammer.

-nik, suffix, meaning one who is characterized by the preceding word, borrowed into English from the Yiddish, which in turn acquired it from Russian. Productively used in English since 1945, usually humorously or pejoratively, e.g., beatnik (1952), peacenik (1965).

N.K.V.D., abbrev., Soviet secret police organization, from the Russ. Naródnyĭ Komissariát Vnútrennikh Del or People’s Commissariat of Internal Affairs. Created in 1918, it assumed overall control of the state security apparatus in 1934. It officially ceased to exist in 1946, but its head, Lavrentii Beria, continued to control the secret police until his execution in 1954 and the creation of the K.G.B. English usage of the term dates to 1942.

Nomenklatura, n., the Communist Party elite of the Soviet Union and its Eastern European satellites who held positions of privilege, from the Russian, literally those who are appointed (named), 1959.

O.G.P.U., abbrev., Soviet secret police organization (1923-34), acronym for Ob´´edinënnoe Gosudárstvennoe Politícheskoe Upravlénie or United State Political Directorate, 1923. Also spelled Ogpu.

Orwellian, adj., characteristic of the writings of George Orwell (a.k.a., Eric Blair, 1903-50), particularly of his novel 1984, characteristic of a totalitarian state as envisioned that novel, in use since 1950.

Perestroika, n., from the Russ., literally restructuring. In English it refers to the political and economic reforms attempted in the final years of the Soviet Union. A policy of perestroika was first proposed at the 26th Party Congress in 1979 and implemented under the leadership of Mikhail Gorbachev starting in 1985. English use dates to 1981.

Politburo, n., the highest policy-making organ of a Communist Party, esp. that of the Soviet Union, officially the politburo was a Party organ but had the de facto control of the government, from the Russ. politbyuró, abbreviation of polit[ícheskoe] (political) + byuró (bureau), 1927. Also politbureau.

Pravda, prop.n., the newspaper of the Soviet (now Russian) Communist Party, from the Russian word for truth.

Presidium, n., the standing committee that presided over the Supreme Soviet, the highest organ of government it was de facto subordinate to the Communist Party, from the Russ. prezídium, which in turn is after the Latin præsidium or garrison, 1924.

Refusenik, n., a Soviet Jew denied permission to emigrate to Israel, partial calque of Russ. otkáznik, from otkazát’ (to refuse) + -nik, 1975.

Resident, n., an intelligence agent stationed in a foreign country, calque of the Russ. rezidént, 1963. Also sometimes spelled rezident in English usage.

Samizdat, n., the clandestine copying and distribution of writings and literature, an underground press, the writings published by clandestine means, from samo- (self) + izdát[el´stvo] (publishing house), 1967.

Smersh, n., popular name of a Russian counterintelligence organization that operated during WWII, abbrev. of smert´ shpionam or death to spies, 1953.

Sputnik, n., an artificial satellite, specifically the first artificial satellite launched 4 October 1957, literally traveling companion, from s + put´ (way, journey) + -nik, 1957.

Stavka, n., the Russian army’s general staff, from the Russ. stavit´, to put, place, 1928.

Tamizdat, n., subversive writings published abroad and then smuggled into the Soviet Union, from tam (there) + izdat[’el’stvo] (publishing house), 1974, cf. samizdat.

Tass, prop.n., the official Soviet news agency, acronym for Telegrafnoe agentstvo Sovetskogo Soyuza, Telegraph Agency of the Soviet Union, 1925.

Totalitarian, adj., pertaining to a system of government where all individuals and institutions are completely subordinated to the will of the state, calque of the Italian totalitario, 1926.

Tovarich, n., form of address, from the Russ. továrishch or comrade, 1918. Also tovarish.

U.S.S.R., abbrev., official name of the Soviet Union, Union of Soviet Socialist Republics, from the Russ. Soyuz Sovetskikh Sotsialisticheskikh Respublik, 1927. Often seen as the Cyrillic C.C.C.P.

Zek, n., a prisoner of the Gulag, probably formed in an attempt to represent the pronunciation of z/k, an abbreviation of zaklyuchënnyĭ or prisoner.