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Law in Contemporary Society
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What's In A Name?-- By Shenel Ekici (revised May 22, 2025) Cohen traces how the literalization of abstract legal concepts prevents the law from engaging with real-world social and economic consequences. Cohen, Transcendental Nonsense, 35 Colum. L. Rev. 809, 814–15 (1935). Hobbes, who Cohen draws on for a competing concept of legal realism, characterized the state of nature as “any social relationship… exempt from governmental control,” until conflict demands otherwise. Id. at 809–10. To this once-English major, the paradigmatic social relationship is between humanity and language. As Cohen explains, the propertization of trade names creates monopolies over language. Id. at 814–16. As with other legal fictions, the underlying rationale is circular. A business gains recognition with consumers for a name or symbol; economic value is attached to the name. Because it has value, the name is property, and thus legally protectable. Yet paradoxically, this value often depends on the extent to which it receives legal protection. Id. Under the pretense of judicial modesty, courts often assume they are merely recognizing pre-existing property rights rather than actively creating them, by presenting legal rights as inherent qualities of words. Id. at 816. Yet as trade name protection expands, so do the implications for language. Should the right to use a name be governed by the first in time principle? Is the protected word so generic, or synonyms so lacking, that it forecloses competition? Does this expansion do anything to protect consumers, or merely create monopolies over language? At what point does the scope of trademark protection encompass so many words, symbols, or even colors as to lose all coherence? The deepest analytical flaw in this propertization of language is the assumption that language is static–that words can be neatly cordoned off in certain contexts, like butterflies pinned to a wall in an entomologist’s study. What words are, what they stand for, and how they function is constantly evolving, even more so in the almost-century since Cohen’s theorizing. Baudrillard rooted his study of representation—the association between word and meaning—in the Western faith tradition’s “wager…that a sign could refer to the depth of meaning…exchanged for meaning and that something could guarantee this exchange–God.” Jean Baudrillard, Simulacra and Simulation 5 (Sheila Faria Glaser trans., Univ. of Mich. Press 1994) (1981). But the secularization of culture displaced God as the broker of meaning, leaving the already-tenuous word-meaning relationship on shaky ground. Baudrillard saw potential in the process of problematizing this connection that he called simulation: the “radical negation of the sign as value…[the] death sentence of every reference.” Id. at 6. In his view, the word was evolving from the “reflection of a profound reality,” to a mask for the absence of meaning, to finally having “no relation to any reality whatsoever: it is its own pure simulacrum.” Id. “To simulate is to feign to have what one doesn’t have.” Id. at 3. The legal fiction of propertization has accomplished exactly this, leading us to the final phase of the devolution of language. Trademark rights are hyperreal: symbols devoid of meaning other than exclusion, that only sustain themselves through circular logic. Yet despite this logic of private enclosure, these symbols are designed to circulate. They must, in order to keep generating economic value. If a tree falls with no one around to hear it, does it make a sound? If a trade name is not recognizable—i.e., widely shared in the public consciousness—can it still be trademarked? The continued expansion of trademark law now functions as a control mechanism for managing desire. A name so famous you can only use it with permission is an artificial demand-generation tool that only survives because of the legal fiction underlying it. I think of how the Turkish soaps my family watches often blur out the logos on designer brands or coffee cups, in stark contrast to the flagrant product placement so pervasive in American media that it has become a self-referential wink. No matter which stage of simulation you pick—masking the symbol or highlighting it for its own sake—it still stands for nothing but the brand that owns it. Under capitalism, wherever you go, there you are. Yet while trademark law attempts to control and commodify words, we live in an age where “art has returned to being something that must be shared to exist.” See Moglen’s Berlin Keynote. The participatory dynamics of the Internet, the public square where so much of culture and commerce occurs, simultaneously reinforce and erode corporate control. Though less directly policed by algorithms than copyrightable material, trademarks are consistently undermined by democratic content creation on platforms like TikTok? that blur origin and meaning. Virality creates a parallel simulation, where meaning is displaced or replaced outside the control of original rights holders. Content often reaches Baudrillard’s final orders of simulation: where the sign no longer has a clear origin and simply circulates because it appears meaningful—i.e., because it is shareable. Trademark law still clings to the fantasy of signs with fixed referents, while platforms like TikTok? reveal the postmodern truth that signs now function more as viral code than brand indicators. Trademark can try to enforce artificial symbolic scarcity, or entrench its dominance via corporate-approved sponsored content and shoppable links. Yet digital culture resists this, creating meaning outside of sanctioned legal-economic channels. However, the diminishment of the exclusionary halo around trademarked entities does little to de-propertize the word, symbol, or name itself. Social media users are just consumers taking a more active role in commodification—even turning the process on themselves. Through obsessive self-identification via aesthetic choices, users create elaborate lore for the personalities they seek to project, complete with shoppable links to “get the look.” See The Core-ification of Everything Ruins Identity Formation, Substack (Mar. 26, 2024), https://mayumiwrites.substack.com/p/the-core-ification-of-everything. Thus, consumers are merely “empowered” to do brands’ work for them: spinning their own simulacra encompassing not merely a brand name as a sign of quality, but as a lifestyle. Thus, they generate the economic value that allows the legal fiction to sustain itself.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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