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.

Advertisements

Patch Updates for Law; Words for Evil

Making a good game is surprisingly difficult. A good game needs to be balanced. It needs to be equally fair to play as any team, or have reasonable opportunities to overcome challenges and obstacles. Some games aren’t as concerned with balance issues, but many competitive multiplayer games have extensive metagame discussions about balance. Developers try to balance the game as carefully as possible before release. However, patches are inevitable and expected.

Making a good law is surprisingly difficult, as well, and one of the biggest issues is also balance. Laws exist to protect the rights and interests of multiple parties, often in situations where they may be competing with each other. The legislative process, like the game development process, tries to make the law as balanced and complete as possible. However, there is often a need for additional clarity or balancing after the law is enacted. In a common law system, this is usually done by appellate judges.

Both games and law have to balance carefully, thoughtfully, and slowly. Neither wants to make a quick change, only to undo the change in the next iteration. Competitive games and law both benefit from stability and predictability, and participants often react strongly to new balancing effort: both types of updates, if they make major changes, are likely to incite passionate debate.

For a game, updates and balance patches come up as the game company observes data from gameplay and theory crafting to identify and analyze imbalances within the game. Balance patches for law are also the result of identified problems that come before courts as disputes or complaints. However, for a game, the balancing is done as some function of the data within the game: numerical values of some kind are changed (distance, damage, time, etc). In law, the update is often a function of how a piece of language is understood. Language is for law what code is for a game. (There is good reason the different approaches to code are often called “programming languages.”)

Many parts of the law are collections of terms whose meanings are subject to a multitude of organic, unstable factors. Technological advancements challenge the meaning of what is “reasonable” equipment for a commercial ship, to how private citizens might understand their “right to privacy.” Ever-changing cultural norms will determine what “community standards” are applied in determining whether something is obscene.

I realized before writing this that a lot of my posts end up talking about language. I knew this post was heading there again, and I went ahead with it anyway. Part of my obsession is a bit idiosyncratic: a lot of my studies focus is on intellectual property, and the roles of language and meaning are even more pronounced in that area than most. Though any contract, will, corporate bylaw, lien, or criminal confession is ultimately about the words and meaning we draw from (or ascribe to) that glob of language. As foundational as language is to law, I think my interest in it goes beyond my studies. Language has to do with the human experience: how we think, how we know, how we connect, how we perceive reality and understand our fellow humans and ourselves.

“Words for Evil” is a simple game; the central mechanic is basically “Boggle.” You advance through the game by creating words using adjoining letters in a randomized grid. As you find words, your character will fight monsters or unlock treasure chests or evade traps. The underlying message of the game is the language, itself, moves you through the world. Just as in our daily lives, there can be problems in using language to affect the world around us. I have tried to input several strings of letters into the game which were rejected as words; I also made random, desperate guesses as to what might be accepted as language and was rewarded with success. We have the first experience in our lives fairly often: we say something but are misunderstood. The analogy of the second experience, I think, is more suggestive of some of the understanding of what language is and what it means to know language. I do not think we often make random, desperate noises and find that someone will understand them as a coherent expression and aid us according to our will. But if that has happened, I want to hear about it.

7 Words Around the Hearth[stone]: A Game Between Structuralism and Post-Structuralism of Limiting Meaning

“Talking, talking. Spinning a web of words, pale walls of dreams, between myself and all I see.”

– Grendel, by John Gardner

I’ve played a few games of Hearthstone. With no serious experience with either World of Warcraft or trading card games (like Magic: The Gathering, or Yu-Gi-Oh or even the Pokemon card game), I’ve still had quite a bit of fun.

In one game, an unexpected bout of hilarity ensued as my opponent and I began selecting random emotes incessantly throughout the game. It was silly, nonsensical babble: two apologies, followed by an expression of gratitude and then a salutation was met with an admission of error, two threats, and two congratulatory remarks. As a fan of both surreal comedy and comedy that turns on wordplay and tricks of language, I was immensely amused. The punchline of this joke is the impossibility of understanding meaning.

There are 6 options you can select to convey “Emote” in Hearthstone:

“Thanks”

“Well Played”

“Greetings”

“Sorry”

“Oops”

“Threaten”

But these words are isolated. They are not connected to larger ideas, facial expressions or body language. Consider the extent of a rudimentary conversation that could be had through the use of these emotes. The difficulty (or impossibility) of conversation can be explained with the models of structuralism and the response offered by post-structuralism.

Structural linguistics is the approach to language that says words are part of a web of meaning. Generally, it’s about structure (surprised?) and connection. We know what something means by the way it connects (or does not connect) to other things- like how the word “chair” connects to our concept and image of the actual thing (or idea of the thing) we associate with that word. (On some views, an authority figure looking at you while pointing to a chair in a room and saying “chair” might further convey an edict for you to be seated in the indicated chair- all of these parts being further parts of the web.) Any single node on this web, by itself, can do very little (or nothing at all). For structural linguists, meaning lies in interconnection between words and concepts, which then gives interconnection between speakers and audiences. We base a connection on the words that are thrown at us because we see the connection between the words, the concepts behind the words, and the interlocutors or subjects involved. One interpretation from structuralism is that the speaker intends a meaning, and understanding meaning is a matter of aligning the mind of the audience with that intended meaning of the speaker.

Post-structuralism is skeptical of this model. One alternative suggests that meaning must account for intent of the audience, not just the speaker (a lot of post-structuralism uses the underlying theme of wresting power from authority). From here, different thinkers have different specific ideas of what this looks like. Some models are chaotically radical, but this general concept plays out in the game of Hearthstone: the limits of the available emotes put more power in the hands of the audience to interpret meaning. But the difficulty of any serious communication is that we would almost never be very satisfied that the minds of the two players are in harmony. We cannot be sure that the audience has grasped the intended meaning of the speaker. We cannot even be sure that the speaker had a meaning (a non-English speaker could be clicking on emotes, or an animal, or even a computer could be programmed to randomly select emote- all of these possibilities raise questions which are the subject of many works in philosophy of language).

The fun irony in all of this is that the hearth was the traditional gathering place for small, intimate collections of humans, where ties were forged and strengthened as emotions found connections through full human expression. Now, Hearthstone represents the opposite of civilization’s precedent, as two strangers struggle with basic communication in order to make some sense of their trifling, playful competition. Around the ancient hearth, words formed a sacred connection among humans as they came to understand the meaning of one another. In Hearthstone, words (re-imagined as “emotes”) mock meaning and the idea of understanding can only be the subject of a cruel, surreal, post-structuralist joke.

UPDATE (2/7/15): DOTA2 has a similar set-chat-option feature, and one comedian-observer noted that the more vitrolic members of the community have endeavoured to “weaponize” that feature.

The Bitter and Sweet Saga of Trademarks

I am not a lawyer and this is not legal advice. (If my blog was more legally-themed, I might have given it this title.)

TL;DR/WR: Trademark law is more complex than the angry mob imagines. Candy Crush can only get limited protection (if any), but there are reasons to protect the name of your product. Trademark law isn’t “broken” just because someone may have tried too hard.

I was ready to give up on ever blogging about law and videogames again. I thought there might opportunities for broader technology-and-law issues, but I felt that my posts on videogames and law were inorganic, forced, unclear, and boring.

     Then, the makers of “Candy Crush Saga” decided to file for a federal trademark registration. And lo, the analysis by the critics and journalists was poor. Not that I blame them- but I’m happy to write about something I’ve actually studied and grasped and is based on existing law. Most emerging videogame law issues are just massive question marks with no prior cases or statutes to guide an analysis. Trademark law still has its wrinkles and questions, but it has a lot of established material to consider.

     THE ISSUE, as I understand it, is that developer King has decided that its product “Candy Crush Saga” is valuable enough to protect as a trademark. Accordingly, it has filed for a federal trademark registration (currently pending and open to comment) and has opposed the trademark registration of “Banner Saga” by developers of the recent release “Banner Saga” for use of the word “Saga” in a videogame title on the basis of likely consumer confusion.

     Few people in the games journalism world seem pleased about any of this. Leading the angry pack, as always, is a profanity-laced rant by Jim Sterling, with Penny Arcade in strong agreement. Kotaku doesn’t like it, and neither does Joystiq  or Rock, Paper, Shotgun. Lots of gamer resources are taking note of the trademark dispute. Some have looked at a broader scope than others, but I have not seen any serious measure of support for the protection of the intellectual property of a product raking in approximately one million dollars per day in revenue. After reading a few emotionally charged reports, I am not so sure people fully grasp what trademark law is or why we have it.

      There are lots of interesting parts of trademark law, but the role of language is one of my favorites. The Penny Arcade comic hits at what I love about Trademark issues- they are wrapped up in language, and I love philosophy of language and linguistics. (I love copyright issues because of their relationship with metaphysics, but that’s for another day.) One of the tangles trademark law must face is to avoid allowing words to become property in a way that gets in the way of competition (or, more jokingly, everyday speech). But, as with other IP areas, trademark law is about more than words. It is about the effort that has gone into making an abstract into something valuable. Ten years ago, how many t-shirts could you sell with the words and logo of what we now know as the Candy Crush Saga logo? Maybe a few to some hipsters who treasure the obscurity? Would you rather own a store selling Candy Crush Saga merchandise today or try to sell the same merchandise 10 years ago? Trademarks have little market value until they are known. No one knows a trademark until a lot of work has gone into marketing, branding, and making a product that people like and care about.

     THE ANALYSIS is straightforward, once trademark law is rightly understood. All property law is an effort to sort out competing claims about ownership. While the subject of intellectual property law can’t be physically touched like the subjects of personal property or real estate can, it is still rooted in some Lockean  notion of “I worked hard for this and it isn’t fair for you to just take it for yourself.” Trademark law can be understood in this way: “A company works very hard to make the public associate its mark with its quality product. No one else is entitled to reach out and benefit from that effort for their own gain.” Trademark law allows a company like King to to prevent other companies from using the goodwill built up by King to promote other company’s products. (What if Coca-Cola tricked you into buying a Coke when you thought you were getting a Pepsi, or vice-versa?) Many of the journalists have pointed out that no one is going to confuse Candy Crush for Banner Saga, and consumer confusion is at the core of trademark law. If the court (or trademark examiner) finds that there is no risk of consumer confusion, King’s complaint will almost certainly be thrown out. But the fact that King can bring this kind of complaint does not mean trademark law is entirely broken or obsolete. There are other factors at play as well, such as whether “Candy Crush Saga” is a suggestive mark or even a descriptive mark (which is a very weak kind of mark, compared with fanciful or arbitrary trademarks, which are prone to enjoying easier protection). So the tension in this case is understood this way: King has a valuable product they want to protect according to their right, but protecting their product may clash with the efforts of others to promote their products. (And I think that describes at least a third of trademark law.)

     We notice the law most when it doesn’t work the way we want or expect. When a jagged corner of the law fails to match our intuitive understanding of justice and fairness, we can become disturbed that our system is inappropriate or inadequate- and maybe we have noticed a particular part of the system that is exactly that. But the law is always an effort to balance the multitude of possible competing claims that might be brought into a legal contest. We should always keep in mind how a solution to one problem will affect other parts of the law. Even writing this makes me feel that trademark law can be a bit like a blanket that doesn’t quite cover you right: when you pull it over your toes, your shoulders get cold, so when you pull it up to your shoulders, your toes get cold. That means the blanket is really bad and should be destroyed- it just means we need to figure something out to cover everything we need to cover at the same time.

….

….

EDITORIALIZING:

Maybe if King didn’t just make a knock-off of Pop Cap’s Bejeweled (which was itself preceded by a game called Saint-Tropez, which can probably be traced all the way back to the strategy game “Go”) with a really unimaginative and descriptive name, none of this would even be a problem. But hey- I’m not making a million dollars a day. No one pays that much for understanding language or law.

Dragonrend: The Power Of Language is the Expression of Ideas

Language is a difficult and important thing. It is the bridge between two minds. Skyrim subtly poses a question about what happens when those two minds are phenomenological incompatible (experience reality in different ways).

     I recently finished the main storyline in Skyrim (I’m usually not very fast at finishing videogames). I was quite pleased with the story’s depth and writing quality. My favorite part, by far, was the idea of the Dragonrend shout. For those who haven’t played Skyrim, “Shouts” are a sort of magical spell the player can employ in the game. The story holds that the famous fire-breath associated with mythical dragons is actually the ability of the dragon to speak (or shout) in a way that its voice commands  and becomes a force in itself. This interpretation of the dragon allows for great writing opportunities, as the very concept of “words” and “speech” have a rich history in human (especially Western) civilization and history.

     In gameplay, the Dragonrend shout has the effect of temporarily weakening a dragon, forcing it to rest on the ground (rather than fly overhead), thereby making it easier to attack with a sword (or even an easier target for arrows). It is extremely helpful in defeating dragons (especially if you have specialized in melee weapons).

     The Dragonrend shout is enormously philosophically interesting for a few reasons. Some of these reasons have to do with what the shout is, what it refers to, what it represents for humanity, and what it implies about language and experience. Language is sometimes discussed as technology, and this makes Dragonrend interesting because it was invented by humans, not passed on from dragons. While it is spoken in the Dragon language, it is not entirely comprehensible to dragons. As far as I can tell, it exposes the dragon to the concept of morality, temporality, and the finite. The implications of this are delightful.  Is this shout an interpretation of Nietzsche’s famous “Abyss” or the “Despair” spoken of by so many nihilists and existentialists? Does the shout summarize Being and Nothingness, thereby weakening the dragon’s will to go on? Is the struggle of a Dragon to comprehend the finite analagous to the struggle of a human to comprehend the infinite? If so, is the effect of Dragonrend similar to Kant’s account of the mathematical sublime, in which we experience an aesthetic awe when presented with sheer vastness (such as the stars in the sky or tremendous landscapes)? Is Dragonrend a blend of aesthetic pleasure and agonizing despair?

     More interesting than “what” the shout is, is the question of “why” it works. Can language bring us to perceive what we cannot phenomenologically experience? What is the relationship between the phenomena we experience (or may possibly experience) and the language that describes it? The effect of the Dragonrend shout seems connected to the question of how our experience relates to the language we employ to describe our experience. How can words expose our minds to what we cannot comprehend or experience? (For that matter, what is the connection between comprehension and experience?) This is what I loved about the concept of Dragonrend in the game Skyrim. This device synthesized gameplay and story in a way that opened up speculation both in the gameworld and in the real world.

     More generally,  this is an example of where I think most good videogames are right now: Games don’t often directly educate, but I think they often provide a great deal of material that is ripe for teaching. Skyrim doesn’t quite posit philosophical questions of language as explicitly as Deus Ex poses questions of humanism, cyborg theory, or post-humanism. But for those who are curious, interactive simulations of stories are tremendous resources for exploring any issue the game designers choose to present.

Why I am not Scared of Hollywood’s Image of the Robot Apocalypse: Something Much Worse is Much More Realistic.

Professor John Searle is noted for the example of the “Chinese Room” as a way to demonstrate something that artificial intelligences lack that humans seem to posses. Computers can detect certain strings of characters, but cannot grasp meaning, purpose, or significance. Just as a person could translate between two languages without understanding them, computers only relate symbols according to a set of instructions given to them. AI does not grasp meaning or significance. It does not act out of will, but out of code. Combined with (related?) difficulties of whether AI could have something akin to consciousness, I am not worried about the Hollywood image of the Robot Uprising.

The greater worry is the dependence we have on a system that can vanish. Our lives are made of user IDs and passwords. I have over 50 now. Some I don’t have to memorize: passport number, driver’s license. Sometimes I have to look up my social security number, which is unthinkable to my parents who did not have to hold 5 e-mail account passwords, 3 social media passwords, 2 computer logins, 3 videogame passwords, and 2 bank account logins  in their heads.

The real fear is not that the system will awaken to self-conscious and the robots will rise up, but that someone will trip over a mainframe plug and suddenly jerk the system offline. As more businesses go paperless and more of our data and information is stored “on the cloud,” I think questions of system security and system integrity are far more pressing than the concern of whether the system will become sentient, develop a will, and then turn that will against biological life.

Are Concise and Precise Mutually Exclusive?

To be concise is to minimize the amount of time and language to communicate a concept. To be precise is to make clear the boundaries of meaning- to make it impossible (as much as possible) to misunderstand how much is covered by one’s words but also how much is not covered. It is to tie down every loose end, to anticipate and pre-emptively answer and resolve every possible question, concern, contradiction, confusion, and counter-argument. It is simply a fact that this takes more time and more language than to not do it. We can also be more concise if we take on smaller tasks: if we keep our subject matter extremely narrow, and simply cut potential areas out of the discussion as “extra-topical.”

Another shortcut is to make assumptions about what the audience simply won’t be confused about—to assume that the audience will not be misled on certain points and omit that relevant discussion.  Explanations take more space if they include proofs of the premises used in the primary argument. If we simply assert them as axiomatic and let our primary argument remain conditional upon the validity of the premises, we can save time. However, this comes at the cost that our argument is less powerful, less clear, and more open to misinterpretation and abuse.

In “Amusing Ourselves to Death” (1985), Neil Postman notes the difference in length between the Lincoln-Douglas debates (several days of multi-hour speeches) and present-day political debates (one hour, split into few-minute sound bites and slogans). Postman’s analysis is that news, social/political discussion, and other public discourses are reduced to quick, pithy sound-bites in the latter 1/3 or ¼ of the 20th century. My additional analysis is that the quality of discussions, debates, and overall understanding of issues has declined drastically. (For examples, consider 4chan, YouTube, Reddit, Facebook, or other community discussion opportunities online.)

We may see this as a tension between a cultural environment which emphasizes speed (`a la Virillo) and the slow and steady requirements of human understanding (which is unwilling to yield to cultural demands of speed). As a sped-up culture pushes for the “quick-and-easy” sound bites and summaries, areas of society that demand deeper comprehension will be increasingly at odds with the tech-culture. Law is one such area.

In law, explanations must be precise. Laws and contracts must be clear enough to be understood, and should strive to be so clear as to not be misunderstood. If law sacrifices clarity and precision, problems multiply. The grand value in a technological capitalist society is efficiency. The precision required by law can be seen as “front-loading” the efficiency because greater inefficiency results from resolving problems created by imprecise law. In this way, both precision and conciseness can be mutually exclusive yet both serve the end goal of efficiency when applied in different contexts.