In “Darmok,” the 102nd episode of Star Trek: The Next Generation, the crew of the Enterprise was confounded by their inability to communicate with the Tamarians. On the surface of El-Adrel, Dathon, the Tamarian captain, repeats the phrase “Darmok and Jalad at Tanagra” to Captain Picard. It took most of the episode for the Enterprise crew to deduce that Tamarian communication is entirely based on metaphors from Tamarian folklore. A lawyer, trained in the application of legal precedent (a particular form of metaphor), might have more quickly deciphered the Tamarian language, and saved Captain Dathon, but lawyers are (disturbingly) sparse in the 24th Century. Trademark lawyers often communicate in their own metaphorical language, arguing the DuPont Factors, or the 2 distinction between product configuration and packaging configuration, or functionality under Traffix. So too, metaphors enrich our everyday speech, allowing us to colorfully convey complex thoughts and images with a few words imbued with special, shared meanings.
We know trademarks to be source identifiers, allowing consumers to repeat a prior satisfactory experience based upon the presence of mark. Trademarks also have an expressive meaning. A trademark communicates not only with consumers, but among consumers. Why are brands displayed on the exterior of so many consumer products? This is not necessary for their function as a source identifier, but so that a consumer can use the trademark to communicate with other consumers – maybe it’s something like: “look at me, I have what the cool people have” or perhaps “look at how much I can afford to spend on a shirt.” Trademark owners benefit from this expressive use as well because it can drive demand for their branded products.
As messengers of both their owners and their consumers, trademarks are especially evocative. They have been endowed by their owners with carefully cultivated meanings through advertising. Their message is amplified by consumers who wear or carry the marks as living billboards. Trademarks are an integral part of the modern world, and are essential tools for realistically depicting that world and communicating about it. Having voluntarily exposed their marks to the world, and profited therefrom, what right should the owner of a mark have to control expressive, non-trademark uses of the mark?