Trademarks Lexis and Lexus (was nexis is baffling)

[RonButters at AOL.COM]

This is a fairly famous case among "forensic" linguists because a literature 
professor (who is not a linguist) testified that "Lexus" and "Lexis" are so 
different in pronunciation that the likelihood of confusion is slight. The judge 
who wrote the majority opinion in the case quoted the professor favorably in 
finding for the defendants. Another professor (a linguist, as I recall, though 
I don't know his identity) appears to have given a well-rounded linguistic 
opinion, which was quoted by the judge who wrote the minority opinion. 

Arnold is right that the major reason why there seems to be little in the way 
of a trademark issue here in that cars and online search engines are not in 
direct competition, though the issue of dilution of a famous mark may also have 
been at issue here (I'd have to check the files to make sure).

I'm not sure I agree completely with Arnold that the minority of Americans 
who distinguish "Rose's" and "Rosa's" would also necessarily distinguish "Lexis" 
and "Lexus." They are relatively rare words--especially "Lexis," so many 
distinguishers would not have a fixed notion of how they were "supposed" to be 
pronounced. Of course, such speakers could make a distinction if they set their 
minds to it, while the majority of Americans really can do so only at best with 
great difficulty, if at all.

What the literature professor testified is as follows:

" … 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 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."

This appeal to prescriptive norms is not very enlightening, in my opinion. 
And the distinction really is not there for most speakers. Moreover, the 
linguistic likelihood of auditory and recall confusion seems to be pretty great, even 
for people who distinguish final barred-i and final schwa in the environment 
immediately before /s/.

I should perhaps   make it clear (in case G. Nunberg is reading this), that I 
had no role whatsoever in this case. I did, however, discuss the linguistic 
testimony in a paper that I gave at a meeting of the Law and Society 
Association in 2005 ("The Credentials of Persons Testifying as Linguistics Experts in 
American Trademark Litigation"; currently submitted for publication).

In a message dated 4/8/07 12:48:22 PM, zwicky at CSLI.STANFORD.EDU writes:


> On Apr 8, 2007, at 9:17 AM, Fred Shapiro wrote:
> 
> > I believe that when Toyota named its luxury car Lexus, LexisNexis took
> > legal action to prevent them from using that name.  Linguists
> > testified
> > for Toyota that the pronunciation of "Lexus" differed from that of
> > "Lexis."
> 
> and so it does, for people who similarly distinguish "Rosa's" and
> "Rose's".  Lexis/Nexis could easily have found linguists who would
> have pointed out that there are also people who don't make this
> distinction.
> 
> i don't know the details of the case, but the most significant issue
> should have been the possibility of brand name confusion (very
> slight, in this case).  if another car maker decided to market a car
> called Lexis, or if another database firm decided to market a search
> engine called Lexus, *then* we'd clearly have a case.
> 
> arnold
> 
> 




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