A Thermos Full of Aspirin For the Headache of Trademarked Words Acceptable In Scrabble

A Law of Language

Language is interesting for 3 reasons: It’s neither as stable nor unstable as we believe it is, it’s more important than we think it is, it’s the primary means of human minds interacting and yet it’s not clear what it is or how it works. A human mind exploring language is something like traversing a museum of optical illusions that is constantly reconstructing itself based on the exploration.

I think this is part of why I love trademarks. Trademarks are one of the places where boring, unimaginative people (who care only about money and the weather, but only sincerely about the first) are given an example of why it’s ok for me to care about interesting, abstract ideas like language. Trademarks (especially word marks) are about the use of language to describe and define the business world. However, law wants to be stable and static, and language sometimes wants to be fluid and miasmic. Because law is made of language, there are some challenges that come from language in every field of law- but trademark law is almost made of language puzzles.

Scrabble: A Classic Language Word Game

Sometimes I get salty when I play Scrabble. Not because I lose a lot (though… that too), but because I see dictionaries as valuable tools for describing and explaining language.

I don’t think Scrabble is actually a game about language. It is about words. Some words, at least: sequences of letters that are on an approved list. The question that underpins my frustration is “How do we decide which sequences of letters make it on that list?” I think that question is really about the difference between words and language. Words are just strings of characters that we can list. Language is a complex network of decisions about communication. The flexibility and organic nature of language is the foremost challenge in determining the official list of proper and acceptable words.  The Great Scrabble Tradition (and probably also some rules) holds that “foreign words” and “proper nouns” are not permitted. Depending on the house rules, this usually includes company names, brand names, and product names.

I recently had the opportunity to play the word “thermos.” I stopped myself- I knew the word was trademarked over a hundred years ago, which would make it an ineligible word for play. I later looked the word up, unsure if there was some “definition 2” trick that I didn’t know about. I was surprised that the word was acceptable for play in Scrabble. I leapt into research and found out that the thermos trademark was actually cancelled in 1963 as a result of a Federal Circuit ruling that the word had become generic! I was so excited to learn about a trademark cancellation by a court that I didn’t even remember to be salty that I could have won that game if I’d known I could play that word. A court ruling like that is pretty rare, so this was a very exciting find.

Genericized Trademarks: A Vibrant Afterlife for Intellectual Property

Not a lot of words have the distinction of being introduced to the world as a label with a business goal in mind, and then transform into a piece of common parlance. But when they do, it is often because the business was too successful.

In copyright, works automatically become part of the public domain after a fixed number of years (realistically, whatever time Disney tells Congress to choose, but at least Congress writes down the most recent number of years in the latest copyright law amendment). Patents expire automatically after a fixed number of years (20 years for a utility patent, 14 for design). Trademarks don’t have a built-in expiration date- they’re generally just valid until they’re no longer used in commerce. But on rare occasions, the word can become generic over time. As more people get familiar with a product, they use the special name of the product as meaning the general name of the product. In my own lifetime, “Google” has changed from one of several search engines to the verb for general online research. Google fights this, a little, but they’re going to lose. It’s a little like when people try to control  copyright violations in the context of the internet. It’s very hard to stop people from singing and drawing what they want to, even if you can curb some of their publications. But if that is hard, it’s nigh impossible to stop people from using language the way they want to.

Conclusion: Trademark Law is For Consumers as well as Business

I love the poetic irony in trademark law: when you dominate the market too completely, you lose something about what made you special. When Aspirin was introduced by Bayer to American doctors, “Bayer listed ASA with an intentionally convoluted generic name (monoacetic acid ester of salicylic acid) to discourage doctors referring to anything but Aspirin.” This somewhat underhanded marketing move contributed to a 1921 court decision that effectively cancelled Bayer’s trademark.

Trademark law is made for a thriving, competitive marketplace. Its purpose is to help consumers navigate a busy and crowded marketplace accurately, and without being deceived. When the marketplace is no longer competitive, trademark law is less necessary. The rules concerning generic trademarks emphasize that trademark law exists to protect consumers from confusion and deception. If trademark law was centered on protecting businesses*, it would not make sense to cancel the trademark of a company that had dominated the market.

Just as Scrabble is a word game, not a language game, trademark law is a consumer protection law, not a business law. The distinction seems small, but sometimes a small difference matters. Like when you decide not to play “thermos” and lose a round of Scrabble by less than 10 points. One word– and the legal and linguistic status of the word– can make a difference, for both Scrabble and trademarks.

 

*Trademark law does protect businesses, of course: it prevents other competitors from benefiting from the branding and goodwill of a company, and gives legal backing to the abstract notion of “goodwill” that makes it a viable, montized asset of a company.

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Communication: Essential to Problem-Solving as a Group

Scream Blame to Lose

It’s hard for me not to think of League of Legends as a social experiment: Five strangers, thrown together to solve a problem (made up of a series of problems). Sometimes it works incredibly well, other times, it goes incredibly poorly. I still don’t know if the single most important factor for success is execution or communication, but I have learned that communication matters a lot more than I initially thought it would.

After thousands of games, I have noticed some unsurprising patterns: optimism, clear and specific communication, and goal-oriented planning are consistently effective; negativity, blame, malice, and angry generalizations routinely lead to failure. While some games can be won with relatively little communication at all, I have seen negative communication cause losses that would not have happened amid total silence.

Like a lot of Americans, I’ve been reflecting on the most recent election cycle. As someone with an interest in language, political science (the effort to describe and explain political phenomena), the effect of media on individuals and society, and a little US history, I am particularly struck by the current state of political discourse in the US.

A Nation of Arguments

The USA is a weird country from its inception. Before, during, and after the Revolutionary War, the country was arguing- constantly and continually- about the correct decisions for its political structure. What makes this weird is not that there was disagreement among the revolutionaries—every revolution has factions some internal struggles. What makes the US peculiar is that the revolutionaries kept debating, writing, and arguing. For years. Decades, even. They didn’t kill each other (except Burr v. Hamilton?), they didn’t just decide the other side was too stupid to see reason and give up, and they didn’t quit. This pattern for ceaseless debate and argumentation was the hallmark of US politics until about 1852, when the last two really great debaters and negotiators (Clay and Webster) died—and the nation plunged into Civil War less than a decade later.

But despite ongoing differences in an ever-expanding nation, the Federal government continued to debate and argue until they found a way to work together. Throughout most of the 20th century, Congress was divided into Red and Blue teams, but those teams repeatedly worked together for the greater good of the nation.

Echo Chambers and Intolerant Vitriol

It’s always hard to tell how your own time period compares to the times you never experienced. But I think there’s some objective evidence to support the claim that the US is more divided than it was at any time in the 20th century—and maybe at any time outside of its civil war.

There are a lot of problems and concerns facing the American people and the US political structure. Though it appears less immediate than some of those problems, I am most concerned about the condition of discourse. I am most concerned about this because it is an indispensable tool for politics in the US. If citizens and politicians cannot (or will not) rise to the level of the first 100 years* of political discussion and effort, I don’t know how much of America (as ideals, laws, political norms, etc) will survive the next few years. I am concerned about the future of a nation founded on debate and compromise that has no capacity for debate and no tolerance for compromise. I don’t know what comes of an America that loses its ability and willingness to doggedly wade through complicated political issues to reach understanding and compromise. If the past is any indication, it looks like 1860-1865.

I hope I’m just being an overly- anxious alarmist. I’ve had plenty of games where communication broke down, but then recovered.

 

*Let’s be real: it was not all sunshine and roses. Jefferson v Adams is up there in for the dirtiest smear campaign in US history. And the only assault of a US Senator, BY a US Senator, on the SENATE FLOOR, happened just before the Civil War. I don’t want to over-romanticize the past.

Individuals or Groups in Fallout?

Bethesda released Fallout 4 this month. It’s the sequel to one of my all-time favorite games, so I’ve talked about it with most of my friends. As with books and movies, people often ask “so, what is the game about?” I think there are two general ways to answer this question for the Fallout games, and which of those two choices you pick may reveal something important and fundamental about how you see the world. Like seeing glasses of water as half-empty or half-full, some people tend to see Fallout (and the world) as about individuals, while others understand the game and society in terms of the relationships between groups.

1) Wasteland v. Shelter

The entire Fallout Universe is set in an alternate future Earth that results from a history that diverges from our timeline around the 1950s. In The Fallout Universe, dwindling natural resources ultimately lead to global nuclear annihilation in the year 2077- though the happy-go-lucky hokey culture of the iconic 1950s middle-America never went away. Pockets of the population survived the nuclear holocaust in large underground Fallout Shelters, called Vaults. In each of the four main Fallout games, the player controls a character that emerges from one of these Vaults to explore the desolate American ruins (called “the Wasteland”) and navigate the emerging post-apocalyptic civilization.

My own interpretation is that a Fallout game is “about” an individual: the player’s character, who emerges from the vault and explores the Wasteland. The alternate understanding is that the games are about a post-nuclear war America, and the societies and choices that might exist there. I think that the design (e.g, the isolation in the player character’s generic identifier) and mechanics of the game (a first-person RPG) focus the game on the player, rather than the world. The contrast with another Fallout game, Fallout Shelter, makes this distinction even more clear.

When project lead Todd Howard announced Fallout 4 at this year’s E3, he also announced a simple game for tablets and phones: Fallout Shelter. This game allows a player to design, build, control and manage a Vault of their own. This game requires players to optimize work assignments within the vault, balance resources, manage growth, and face disasters. In contrast, Fallout 1-4 require a player to create and manage a single character. Then the player must move that character through the Wasteland to find supplies, fight enemies, and make individual decisions in their interactions with non-player characters. Other game design elements also emphasize the difference between the focuses of Fallout and Fallout Shelter. For example, Fallout Shelter continues after a Vault Dweller’s death, whereas a game of Fallout ends when the player’s character dies.

2) Kierkegaard v. Hegel

It can be difficult to talk about some things that are extremely basic to our experience. We don’t stop to think about how we could describe the primary colors or define some commonly used word, much less explain three-dimensional space or what it feels like to feel. So, most people don’t reflect on some of the axioms they use in interpreting the world. Luckily for we plebeians, it is the business of philosophers to ask questions that “normal” people never get around to asking.

Soren Kierkegaard is known as the father (or grandfather) of existentialism, as well as one of the most prolific Christian theologians. He focused much of his philosophy on a concept of “subjectivity,” or “inwardness.” While we think of “subjective” as a term to describe something uncertain, indeterminate, or disputable, Kierkegaard rarely means anything like this. His use of the term refers to individual experience and existence—the things that no one else can feel or be on another’s behalf. (See also: phenomena, ownmost) For some people, this is the fundamental operation of the world: reality is only ultimately understood as individual subjective experience. This is not to say that the rest of the world does not exist, but only that the world is understood as an individual experiencing that world. This might be more clearly understood by a comparison to an alternative view.

G.W.F. Hegel is one of the most influential philosophers in history (just look at the last paragraph of his intro on Wikipedia!). His ideas still influence most of the humanities and social sciences, and in turn influence public policy and law. His most enduring ideas— synthesis-antithesis-thesis, slave-master dialectic, and other ideas assorted the End of History—all find their basis and application in a particular understanding of the world. Hegel understood the world in terms of broad groups and populations. Though he paid more attention to nationalities and cultural groups, Karl Marx would pick up his ideas with a sharper focus on economic classes, and 20th and 21st century branches of feminism similarly rely on understandings of groups of sexes, genders, race, and so forth. Whatever they type of group, criteria of classification, or mode of organization, this view sees the world as sets of people. What matters, fundamentally, is the structures and systems that guide the interactions and relations of these groups.

Except in the most extreme cases, neither of these contexts aims to deny the existence of the other. Hegel’s view of people as masses and classes does not deny that individual humans exist or have experiences. Despite his more polemic and attention-grabbing assertions, Kierkegaard acknowledges that large groups of people may have enough in common to be grouped together for at least the purpose of discussing issues at a large scale. However, these two base concepts are so different that they can have trouble understanding one another, and apparent conflicts between them can be frustrating for both sides.

3) War Never Changes, Even on the Internet

I’ve seen a few disagreements in cyberspace. (I’ve seen them in physical reality, too; the same precepts apply, but arguments are easier to dissect and consider when they are recorded in unaltered writing… because logos.) Particularly on subjects of social or political concern, parties can reach an impasse which I think stems from the same kind of difference that I find between Kierkegaard and Hegel.

Many disagreements feature an assertion of some fact about the world (in the form of statistics or data about large groups, large scales, or general systems and structures), which finds a response in the form of a personal anecdote (a friend’s experience, a single individual counter-example, a personal story, etc.). This personal experience appears to contradict the first assertion, and both parties reaffirm their positions without exploring the difference in the kind of evidence offered. Progress is rarely made, and each combatant will leave the fight feeling certain of their own victory, and annoyed that their opponent was too stupid to even understand such a clear and convincing outcome.

One significant effect of these different viewpoint axioms is what kinds of things can constitute valid evidence. For those associated with Hegel’s position, most single, individual experiences can be dismissed as statistically outliers or generally poor basses for public policy decisions. However, for those who embrace Kierkegaard’s understanding, individual experience is of paramount importance in shaping individual thought and opinion; larger scales may certainly be considered, but can never replace personal, subjective experience.

4) Believing in the Atom: Quantum Mechanics v. Classical Physics

In Fallout, there is a religion that believes in an inherent divinity of the nature and structure of the atom. Adherents to this sect view nuclear devastation as an act of creation rather than destruction, and see nuclear radioactivity as a source of both physical and spiritual power. The fact that atoms comprise all matter and can be split to unlock tremendous energy inspires awe and wonder for these worshipers. While that is awesome, I find it more amazing that the particles which make up atoms obey entirely different laws than the objects which the atoms themselves make up.

It seems self-evident that the all of the physical world ought to be governed by the same set of laws. We expect all objects, from apples to planets, to behave the same way everywhere in the universe. The fact that sub-atomic particles don’t behave like planets is a vexing concern for many scientists (even those not spending their lives trying to resolve this contradiction by developing String Theory). What seems to annoy scientists the most is that each law clearly works in its respective domain. Neither disproves or overpowers the other, yet they remain incompatible. In the same way, viewing humanity from either the individual perspective or from a scope of large populations seems functional, and neither viewpoint disproves or obliterates the other.

I don’t know whether it’s even the right question to ask, whether Kierkegaard or Hegel was “right.” Maybe that’s the wrong way to think about the matter. But I think understanding these two approaches brings coherence to a lot of apparent noise in internet discussions, and makes comprehensible what might otherwise just appear to be deranged ranting. It will be a lot of work to bring these two worldviews into harmony, but just recognizing them might be a very fruitful first step.

 

 

A Compressed Language for the Digital Age?

Analytic philosophy features some lengthy tomes (Hume, Hobbes, Locke, Kant, Rawls, etc). The idea is to be thorough, laying out the explanation and motivation for the argument, the counter arguments and replies to them. It isn’t just jumping in and asserting some ideas. It’s a matter of carefully constructing a case, building it from the foundation up. Another reason for the length is to show context for the argument: where does it come from (historically), how does it connect to other arguments, why is it important, what does it do, what are its limits and weaknesses, etc? Between 400-500 words seems about the limit for many people for these blog posts— More than that starts to get too in-depth and too convoluted for people to stay interested. The benefit to me, as an author, is that I am compelled to think about the issue and boil it down to its bare, core bullet points. The downside of this for any reader is the lack of context. On some readings of Baudrillard, this might be a good thing, in that there is no “seduction” or “leading away” of anyone from the thing which we are trying to understand. However, if there is anything to the ideas of the structuralists, maybe placing the issue in a web of context and showing its connections to and disconnections from the rest of the world is actually how we come to understand it. But is the web too complex for this to work? Can we trust readers to place in the web themselves, to link and tag and categorize correctly and appropriately? Maybe they’ll be better at it than authors. Maybe they won’t do it at all.

It makes me wonder if the amount of material available and the increased access to it in the 21st century begins to impose a need on changes in language that accommodate a faster transfer of information. As files began to get big, we started “compressing” (or “Zipping”) them during transfer. To compress is to increase the density of a mass by decreasing the volume it takes up, even as the mass stays constant. We compress gasses with various tanks and pumps, and computer files with languages and applications —can we compress ideas with language and thought? Would the compression of ideas require a new grammar, or only a few new words and symbols? We would still need to trust the reader to “unzip” or “decompress” the information once they received it: to tag, categorize, connect, sort, collate, etc. in their own mind. Are we equipped to do this, as readers?

Pigeon Syndrome

“Arguing with people on the internet is like playing chess with a pigeon: no matter how well you play, the pigeon will just knock the pieces over, defecate all over the board, and strut around like it won.” Amusing because we can all relate to it, but is this reflective of something deeper in society? People seem to lack the patience and interest to explore issues deeply and thoroughly. Neil Postman (Amusing Ourselves to Death) pointed out that the Lincoln-Douglas debates consisted of a series of speeches that lasted several hours as the senatorial candidates argued for their platforms in great depth and detail, as large crowds sat and listened and thought about the arguments before them—contrast that with today’s political rhetoric of superficial sound bites.

Many times I’ve heard people ask a legitimate question: “Why do people do that? Why does that happen? What can’t this be done?” I used to try to explain the answers, but consistently found that people will lose interest in any answer in about 50 words or 5 seconds. They care enough to ask the question, but not enough to put effort into finding answers. On the internet, people are quick to get defensive (usually in an offensive manner), but are more inclined to write “stfu” or “tldr” rather than engage in any kind of meaningful, interesting, or critical discourse. I think it’s sophomoric to dismiss the [non-] interlocutors as “not smart enough”  to keep up with a discussion on why stealing farm in League of Legends is irritating and unhelpful or a thread criticizing the way rape is viewed or discussed in society. I think most participants can understand the words and learn the relevant concepts, especially when they have Google, Wikipedia, and Dictionary.com at their fingertips throughout the conversation. Rather, I think they are more inclined to hide in ignorance than dare to learn something new because of fear and shame.

I think one factor holding people back from seriously exploring questions as adolescents and adults (notice that young children don’t have this problem nearly as often) is their embarrassment at not already knowing the questions they ask. Increasingly, we are deciding our questions are rhetorical because we are ashamed to find that there are answers to our questions and we just don’t know them yet. This approach has the added incentive of allowing us to be lazy.

A Relevant Image:

http://xkcd.com/386/