Ronald R. Butters

Duke University


Variation in Southern Trade Names: Regionalisms that One May Can Own

According to federal law, some words may actually be owned for purposes of trade if they meet certain legal standards. One important condition is that words that are GENERIC may NOT be owned as trademarks, and words that are merely DESCRIPTIVE may be claimed proprietarily only if they have developed SECONDARY MEANING. The legal definition of a GENERIC word is similar to that found in linguistics, but not identical: a GENERIC word is one that merely names the kind of thing, rather than the thing itself, e.g., laundry detergent is GENERIC, whereas Tide is not GENERIC. A descriptive term simply describes a significant aspect of the product or service; SECONDARY MEANING is semantic association that does not, on the basis of noncommercial meaning alone, relate a product or service to a particular company, but is an association that has developed within commerce between the term and the commercial source. For example, one might argue that Monopoly is descriptive of a game the object of which is to simulate a monopoly, but that the term has come to be recognized as a trademark nonetheless through advertising and use by the public.

Regional terms in general--and Southernisms in particular--sometimes function as trademarks, and the status as regionalisms or putative regionalism complicates the determination of GENERIC and DESCRIPTIVE status. This paper examines two such Southernisms, the word opry (as in Grand Old Opry and Carolina Opry) and the faux Southernism Kiss my grits! (the subject of a lawsuit between the Hershey Candy Company (manufacturer of Hershey's Kisses) and the Kiss My Grits Candy Company of Charleston, SC).