Die forensiese linguis en regspleging : ’n Ondersoek na handelsmerkdispute in Suid-Afrika

Abstract

Trademark disputes usually involve two parties claiming the right to use certain words or expressions. These words or expressions contained in competing trademarks constitute the core elements of these disputes, and attorneys rely on their own knowledge of language when dealing with linguistic issues that may arise during litigation. Shortfalls have become evident in legal practice insofar as addressing linguistic issues in trademark disputes with the required insight. There also appears to be a gap between the linguistic needs of attorneys and linguists’ awareness of their potential contribution in trademark disputes, as well as regarding attorneys’ awareness of the contribution that linguists can make in such cases. However, virtually no research has been conducted in South Africa on the role of linguistic assistance in trademark disputes – a practice well established abroad. Several sources indicate a close relationship between language and the law, and forensic linguistics has emerged as the preeminent field in which the interaction between language and the administration of justice finds expression. In this regard, forensic linguists provide a solution in the form of offering expert linguistic insight for application in the resolution of trademark disputes. This study argues that assistance from linguists to attorneys with regard to linguistic issues in trademark disputes can actively contribute to resolving these disputes. This study had two main objectives: (1) to investigate and describe the methodology followed by forensic linguists with regard to linguistic analysis in South African trademark disputes, and (2) to investigate and describe possible guidelines with regard to this methodology for the South African context. A research design of qualitative content analysis was selected, and an inductive approach was followed. Apart from secondary sources for the literature review, primary sources were collected for an empirical investigation. These comprised actual reports by three South African linguists compiled for purposes of trademark disputes, as well as local court judgements of trademark disputes involving the argumentation of linguistic issues. From the data analysis and synthesis, the methodology followed by linguists in trademark dispute analyses was identified, namely a comparison of competing trademarks on orthographic, phonetic, morphological and semantic levels. Orthography, together with the linguistic subfields of phonetics, morphology and semantics, seem to be perfectly suited for application in trademark disputes, not only to indicate the likelihood of confusion between trademarks, but also the intrinsic distinctiveness of individual trademarks. Findings also demonstrated that the linguists followed a pragmatic approach in their analyses from the outset, and that these analyses were not merely superficial theoretical exercises. A set of guidelines was identified from the data analyses and synthesis, which local linguists can follow in linguistic analyses of competing trademarks. These guidelines serve as a core toolkit which can be expanded and adapted according to the case at hand. This study is the first survey of this nature of linguists’ involvement in South African trademark disputes. There is much need for further research, and the present investigation raises potential themes for further exploration with the aim of strengthening forensic linguistics in South Africa