Hilton v. Hallmark

9 September 2007

In yet another case of a celebrity claiming ownership of a commonly used term, the AP reported yesterday that Paris Hilton is suing Hallmark over the use of her likeness and the phrase that’s hot in a greeting card. The card has a photo of Hilton’s head superimposed on a waitress’s body and she is telling a customer not to touch a plate because that’s hot.

A search of the US Patent and Trademark database shows that Hilton has indeed trademarked that’s hot for use in marketing alcoholic beverages, electronic devices (cell phones, video games, etc.), and for use on clothing. But greeting cards is not one of the uses filed by Hilton. Having a trademark does not grant you sole license to use a word or phrase in any context, but rather protection is limited to marketing products specifically referred to in the trademark application. The point of trademark law is to prevent customers from becoming confused about who is manufacturing what products.

The AP article errs in referring to the parody fair use defense. Fair use and parody relate to copyright law, not trademark. There is no fair use in using someone else’s trademark to market a competing product, parody or not. All that counts is whether a reasonable person might confuse the Hallmark product and Hilton’s products. But as this appears unlikely in this case, Hallmark is probably on pretty solid ground regarding any possible trademark violation. (Less so on the charges of commercial appropriation of identity, misappropriation of publicity, and false representation. Although, the charge of invasion of privacy is rather silly; as if Hilton herself had not already destroyed any shred of privacy that she might have once possessed.)

The AP report, to its credit, does not refer to this, but many people believe that coining a term is necessary in order to trademark it. It is not. What is important is being the first to use a term to identify particular products and services. Apple Computers obviously did not coin the word apple, but they were the first to use the word in the selling of computers, hence their trademark. If Apple Computers went into the fruit business, they would not be able to prevent competitors from selling apples. Similarly, Hilton was not the first to use the phrase that’s hot, but she is probably the first to slap the phrase onto a line of t-shirts and other clothing.

Viral Language

4 September 2007

4 Sep: Mark Liberman over at Language Log has an excellent discussion of the term viral language.

Prescriptivist’s Corner: Taking Johnson To Task

3 September 2007

LEXICO’GRAPHER. n.s. A writer of dictionaries; a harmless drudge, that busies himself in tracing the original, and signification of words.
—Samuel Johnson’s A Dictionary of the English Language, 1755

I included this quote in the last newsletter as part of the announcement of the change of the blog/newsletter name from A Way With Words to The Harmless Drudge. The new name is, of course, taken from Johnson’s famed dictionary definition.

But a reader wrote back complaining about the use of that in the definition, and Samuel Johnson or not, this was just plain incorrect. It should be, she said, who busies himself.

What we have here is an excellent illustration of how language changes over time. Of course, in today’s speech we would not properly use that to refer to a person. That is a relative pronoun that refers to things. Who or whom are used to refer to people. But this was not always so.

That is one of the oldest pronouns in English. As seen in this passage from the Vespasian Psalter, c.825:

In bebode ðæt ðu bibude. (In command that thou decree.)

It was common through the 18th century to use that in reference to people as well as things. We have this from Wycliffe’s 1382 Bible:

Oure fadir that art in heuenes

Or there is this from Shakespeare’s Hamlet, written in 1601:

By heaven, I’ll make a ghost of him that lets me.

The word that fell out of favor in the 17th century, disappearing from literary works during that century. It returned in the next.

It wasn’t until the 18th century that grammarians started calling for the restriction of that to inanimate objects. The first of these was an anonymous 1752 work, Observations Upon the English Language. It said who was:

the only proper Word to be used in Relation to Persons and Animals.

This grammar did not refer to that at all, instead calling for which to be used “in Relation to Things.” This is probably a holdover from the disdain that that was held in the previous century.

Johnson, writing at about the same time as the anonymous prescriptivist, seems to have had a better eye for the actual use of language. His use of that is right in line with other texts of his day.

But in this case, the prescriptivists seem to have won. Over the years since Johnson, the use of that has become restricted to things, such that his words appear a bit strange, and even incorrect, to the modern reader. The lesson is that criticism of usage in past centuries needs to be judged by the standards of that day, not by our own.

(Sources: Webster’s Dictionary of English Usage; Oxford English Dictionary, 2nd Edition)

Preposition Project

29 August 2007

A pretty amazing site for those interested in prepositions, but its not for the faint of heart (WARNING: Heavy Linguistic Content). The site characterizes 673 senses of 334 English prepositions. If you’ve ever been tempted to create your own dictionary, a look at this site and the workload required to do lexicography right will almost certainly dissuade you.