The anonymous lawyer friend who provided me with the material in my earlier post about trademark law adds another twist. It turns out that the owners of the Lexis-Nexis database sued Toyota to get the Lexus brand name squashed! And what emerged was a nasty case of judges having to wrestle with issues of the phonetics of reduced vowels in various dialects and idiolects of English when they had received no training in this matter (phonetics is not on the curriculum at law schools, sad to tell). All of the following interesting stuff, down to the end of the quote from the judges, is from him.
The case of Mead Data Central, Inc. v. Toyota Motor Sales, USA, Inc., was decided in 1989. Mead, the owner of a trademark "Lexis", for legal research services, sued Toyota to prevent them from using "Lexus" as the brand name for their higher-end line of cars.
In the course of their discussion of likelihood of confusion, the court embarked on an exploration of whether "Lexis" and "Lexus" are pronounced the same in everyday English.
Here's what they had to say -- as you'll see, they got the wrong answer, because they perceive (or mis-perceive) that they pronounce unstressed syllables differently from one another. In short, they found that nobody would confuse "Lexis" and "Lexus" at least in part because they're pronounced differently:
...[I]if the district court's statement in its Lanham Act discussion that "in everyday spoken English, LEXUS and LEXIS are virtually identical in pronunciation" was intended to be a finding of fact rather than a statement of opinion, we question both its accuracy and its relevance. The word LEXUS is not yet widely enough known that any definitive statement can be made concerning its pronunciation by the American public. However, the two members of this Court who concur in this opinion use "everyday spoken English", and we would not pronounce LEXUS as if it were spelled LEXIS. Although our colleague takes issue with us on this point, he does not contend that if LEXUS and LEXIS are pronounced correctly, they will sound the same. We liken LEXUS to such words as "census", "focus" and "locus", and differentiate it from such words as "axis", "aegis" and "iris". If we were to substitute the letter "i" for the letter "u" in "census", we would not pronounce it as we now do. Likewise, if we were to substitute the letter "u" for the letter "i" in "axis", we would not pronounce it as we now do. In short, we agree with the testimony of Toyota's speech expert, who testified:
Of course, anyone can pronounce "lexis" and "lexus" the same, either both with an unstressed I or both with an unstressed U, or schwa--or with some other sound in between. But, properly, the distinction between unstressed I and unstressed U, or schwa, is a standard one in English; the distinction is there to be made in ordinary, reasonably careful speech.
In addition, we do not believe that "everyday spoken English" is the proper test to use in deciding the issue of similarity in the instant case. Under the Constitution, there is a " 'commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." .... When Mead's speech expert was asked whether there were instances in which LEXUS and LEXIS would be pronounced differently, he replied "Yes, although a deliberate attempt must be made to do so.... They can be pronounced distinctly but they are not when they are used in common parlance, in everyday language or speech." We take it as a given that television and radio announcers usually are more careful and precise in their diction than is the man on the street. Moreover, it is the rare television commercial that does not contain a visual reference to the mark and product, which in the instant case would be the LEXUS automobile. We conclude that in the field of commercial advertising, which is the field subject to regulation, there is no substantial similarity between Mead's mark and Toyota's.
All that I (GKP) have to add about this tragically under-informed piece of linguistics in a legal setting is this: the fact is that whether you pronounce Lexis the same as Lexus is in fact a dialect difference. I don't know what should be made of that as regards the case, but the fact is that there is a large faction of English speakers who pronounce the two syllables of skidded as exact rhymes, and say lozenge so that the second syllable that rhymes with hinge, and would pronounce Lexis differently from Lexus. There is also a large faction for whom the second syllable of skidded has the vowel sound of the last syllable of ballad or method, and the second syllable of lozenge sounds more like sponge, and for those people Lexis would normally sound the same as Lexus.
Though notice also that under certain conditions people produce spelling pronunciations, exactly the way actors were being taught to do by the theater director John McWhorter recently wrote about.
So put all that in the expert witness file. Me, I know only one thing: on a matter as subtle as this, the expert witnesses should not be working for the disputing parties; they should be hired by the judge to work for the court. It's too easy, otherwise, for the experts to tell only the side of the phonetic story that backs up the people who are paying them, and that's what often happens in cases where expert witnesses are employed by plaintiffs' or defendants' counsel.Posted by Geoffrey K. Pullum at April 8, 2004 04:14 PM