Phonetic Similarity and Trademark Law
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Abstract
The construct 'phonetic similarity' is fundamental to phonology and phonetics and is an appropriate concern in many linguistics courses. It happens that the construct is also critical to certain points of law, most notably trademark law. Under federal and state statutes, the name of a product or service is protected against infringement by others where the similarities are such that confusion between names (and thus products) could result. The law considers similarity In the sound of two product names to constitute an important factor contributing to confusion. Thus, a proposed product name may Illegally infringe on an established name If It is judged to be too similar in sound. However, the law sets out no explicit or objective criteria for assessing phonetic similarity and likelihood of confusion. The Courts do nonetheless allow expert testimony from linguists on this point.
The purpose of this paper is to present objective measures from linguistics and cognitive psychology as criteria for assessing phonetic similarity and likelihood of confusion. These criteria have been successfully applied in several recent court cases and thus illustrate the application of linguistics to law. This paper should also serve as a means for illustrating to students the basic linguistic properties that constitute similarity in sound.
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