William and Mary Law School

An Excerpt from Naming, Identity, and Trademark Law by Professor Laura A. Heymann

This excerpt from Professor Laura A. Heymann's article "Naming, Identity, and Trademark Law" was published in 2011 in the Indiana Law Journal. To read the full article, please click here.

Introduction

As the process of creation in the age of digital media becomes more fluid, challenging our ideas of authorship, ownership, and legal rights, one pervasive theme has been the desire for attribution: from the creator's perspective, to receive credit for what one does (and to have credit not falsely attributed) and from the audience's perspective, to be able to identify the source of material with which one engages. In an age in which traditional publishers play less of a role in distributing, and thus controlling the quality of, material disseminated to audiences, attributional concerns become more salient. Without a trusted intermediary to select and present information to us, we must rely more directly on attributional signals to facilitate the exchange of reputation-related information.

The fact that attribution appears to be a common and important interest does not, of course, mean that it requires attention from the law. Moral rights theorists seek enhanced legal protection for attribution to recognize the dignity of the human soul and of the creative process. Other commentators propose that attribution interests be addressed via copyright law, either by amending the Copyright Act to incorporate attributional interests directly or by strategic use by copyright owners of their ability to control their work. Still others recognize the importance of this interest but suggest that norms, rather than laws, are the preferable enforcement mechanism, given the difficulty of crafting effective legal remedies. My own writing has examined the relationship between author and audience from a reader- response perspective, highlighting the importance of the reader to the interpretive effort and, therefore, positioning attribution as an important way of providing readers-either as actual or as interpretive consumers-with the source information they need, much as trademark law does for consumers in the marketplace.

More broadly, attributional inquiries highlight the disjunction between name and identity, calling into question the relevance of identity to interpretation. When a significant amount of the material we encounter online is attributed only to screen names, and when politicians regularly employ speechwriters to craft the language that pundits analyze the next day, we might conclude that attribution to someone or something is often important to allow us to confer reputational credit, but that the name we use to do so need not bear any relationship to the moniker that appears on the creator's certificate of birth or incorporation. As long as there is a shared understanding of when the disjunction between producer and attribution is appropriate (a celebrity autobiography ghostwritten by another writer is sanctioned, but plagiarism by a college student is not; microbrews branded differently from the mass- market beer with which they share a brewery are acceptable, but writing under multiple online personas in order to create the impression of broad assent to one's ideas is not), the mere fact of the disjunction is not necessarily cause for concern.

Yet our norms of attribution reflect some inconsistencies in defining the relationships among name, identity, and authenticity. A blog post by a writer identified only by a pseudonym may prove to be very influential in the court of public opinion, while the use Court jurisprudence both touts the benefits of anonymity and decries it as a barrier to the free flow of information. In the commercial realm, consumers file suit when the memoir they have purchased turns out to be largely fiction but seem far less concerned when a company emerges from a public relations disaster with a new name, leaving its old one to the dustbin of history.

The unresolved nature of this interest may be due to the fact that we experience names in both economic and personal ways. We use brands in the marketplace to help us find the goods and services we want and in our social space to express aspects of our identities. Likewise, we use personal names both as file folders in which to sort assessments of and reactions to those we encounter and as expressive ways of endowing our children with the attributes we desire. In short, names are vehicles for communication, both social and commercial. Some of the most famous quotes from literature reflect the importance attached to one's name. Yet, although we tend to think of our names as "belonging" to us and defining who we are (and note that in the United States, our names are often the response to the question "Who are you?" while in many other countries, the question translates as "What/How are you called?"), names are, in fact, much more like trademarks: serving as indicators of identity rather than as identity itself.

Indeed, if one's name were inextricably connected to one's core identity, name changing would be viewed with much more skepticism. Someone who changed his name for religious reasons, for example, would be considered to have committed a fraud on the public rather than simply communicating one new aspect of his persona at a particular point in time. Likewise, a company that adopted a new corporate identity or rebranded one of its products would be the target of claims of consumer deception, even if the motivation was simply to modernize its public persona. The fact that neither circumstance is of legal (or, for the most part, moral) concern suggests that, in some instances, we are fairly comfortable with the concept that a name is not coextensive with identity but, rather, serves a more functional purpose.

In fact, the law recognizes the functional aspect of names. In general, whether the name is personal or trademark, the law remains fairly agnostic with respect to one's choice of name, limiting that choice only in certain circumstances. The justification for these limitations can be more fully understood by greater attention to the philosophy of naming. Naming is typically explained either by a causal theory- that names function as such simply by continued reference to their object-or by a descriptive theory-that names function as such when connected to a particular set of characteristics. Naming law incorporates both of these theories: it permits the choice of virtually any name at any point in time, so long as that name has a clear referent (in context) and is associated with a core set of characteristics. When either of these relationships ceases to exist-when, for example, one adopts a name that confuses others as to the name's referent or when one alters the essential qualities associated with a particular name-the law's concern is heightened. But (with some exceptions) so long as the denotational link between reference and referent remains clear, the law is unconcerned with seriatim changes to the reference. One can be "Susan Anderson" today and "Susan Jones" tomorrow, or "ValuJet" today and "AirTran" tomorrow, without implicating any legally relevant concern with confusion or fraud. By taking this stance, the law strikes an appropriate balance between the autonomy interest in freely choosing one's name and the interests of others in using that name as an effective informational device.

As this Article suggests, fidelity to the principles of naming theory can provide guidance regarding the proper scope of naming law, both as to personal names and as to trademarks. The law's primary concern, I suggest, should be to preserve the core denotative and descriptive functions of the name in relation to its referent at a particular point in time. Attempts to restrict naming choices based on the emotional or other connotations associated with the name, or based on nonessential changes to the name's referent, should be seen as overreaching, precisely because such choices do not fundamentally impede others' ability to use the name as a referent but do frustrate the ability to engage in identity creation. Thus, naming theory provides little support for denying an individual the right to change his name to "Jesus Christ" or a maker of hammers to market its goods under the mark "Rolls Royce," given that it is highly unlikely that anyone will be confused by such uses.