by Christian Mosbæk Johannessen
Unpublished Ph.D.-thesis. Institute of Language and Communication, University of Southern Denmark, 2011
The thesis Forensic analysis of graphic trademarks aims at using insights from Multimodal Social Semiotics (MSS) in... more
The thesis Forensic analysis of graphic trademarks aims at using insights from Multimodal Social Semiotics (MSS) in the pursuit of trademark counterfeiters. It proposes a method of comparative analysis of graphic trademarks, which is an improvement over the current state of the art in trademark practice, the so-called “assessment of likelihood of confusion”. In other words, the undertaking in the thesis falls within the overall scope of forensic science.
More specifically, the thesis sets out to answer the question: “How can a Multimodal Social Semiotic approach to graphic form be made applicable in a forensic comparative analysis of two-dimensional graphic trademarks in order to make the assessment of likelihood of confusion more (i) systematic, (ii) precise, (iii) measurable and (iv) comparable”?
The thesis concludes that, overall, MSS is very apt as a theoretical framework for such analysis. However, because of the stylistic nature of the similarities between the trademarks in many trademark infringement cases, and because MSS does not have the descriptive readiness for the expression plane of graphics, the thesis also concludes that MSS in its current state of development falls short of capturing the similarities and differences of the trademarks in the 12 cases of the corpus in a systematic, precise, measurable and comparable way.
The thesis responds to this lack by developing a theory of the expression plane of graphics within the Hallidayian architecture of stratification. This entails the description of graphic expression at a diachronic, graphetic- and a synchronic, graphological stratum.
Hallidayian “Systemic Functional Linguistics”, from which MSS and thus also this thesis has inherited its key heuristics, has been developed as a theory of language. In order to cater for the fact that trademarks are not language and have very different conditions for articulation and perception than language, the proposed graphetic and graphological approach to analysis of trademarks have been developed within an overarching ecosocial framework with the act of graphic articulation at the core.
In the thesis, acts of graphic articulation are regarded as pivotal in graphic events at many timescales: The logogenetic “event of confusion”, in which a trademark is (potentially) mistaken for another trademark, the ontogenetic growth of graphic literacy in the individual and the phylogenetic emergence of graphic conventions.
The setting of the suggestions for forensic comparative analysis within an ecosocial framework is precisely what makes them compatible with “the event of confusion” in trademark practice. The compatibility rests on the correlation of the event of confusion in trademark practice and the logogenetic event of social semiotics.
In order to answer the research question, the thesis goes through a series of steps:
Chapter 2, “Design of the Inquiry”, discusses certain aspects of the knowledge production of the thesis. The fact that the thesis straddles three very different fields of knowledge, (i) trademark practice, (ii) graphic design and (iii) MSS, poses a challenge, because each field has its own version of what trademarks are and how their function should be understood. Crucially, the discussion revolves around the event of confusion. The event of confusion is a concept proposed in the thesis in order to mark out a common ground, which can accommodate all three professional practices. It is the event during which someone is exposed to a trademark and either recognizes it or mistakes it. Traditionally, trademark practice has regarded what happens in the event of confusion as a psychological perception-event, which takes place in the minds of consumers. However, the thesis suggests regarding the event of confusion as a social, communicative event. This entails regarding the event of confusion as an event during which semiotic resources, which are shared by the communicating parties, are instantiated in an event of articulation as well an event of perception.
Chapter 3, “State of the art”, gives a survey of semiotic approaches to trademarks based on selected literature. The aim is to determine whether previous descriptions of trademarks can provide a starting point for an analytical scheme, which is adequate for forensic purposes. Concentrating on literature from (i) trademark practice, (ii) marketing and branding theory and (iii) graphic design practice, it concludes that the typological nature of their models makes them unable to analytically capture the kind of differences and similarities in cases like the ones in the corpus of the thesis.
Chapter 4, “Multimodal Social Semiotics”, gives a general introduction to the social semiotic paradigm and discusses the origin of MSS in Michaels Halliday’s SFL. The discussion revolves around the status of the communicative system in social semiotic theory. There are two fundamentally different ways of regarding the system, one diachronic and one synchronic. The aim of this thesis, to develop a descriptive scheme for graphic form that is systematic, precise, measurable and comparable, is ultimately a synchronic venture. However, any synchronic, structural description entails a diachronic, dynamic analysis (cf. Lemke). As a result, the thesis proposes a theory of both diachronic graphetics and synchronic graphology.
Another important aspect of the system, which is discussed in the chapter, is the nature of the system’s environment. An increasing sensitivity to diachronically oriented explanations of the system’s architecture, which has led to an ecosocial understanding of the system’s relation to its environment, is a relatively new development in social semiotics. The thesis proposes to take the consequence of this development and suggests a revised model of stratification, which assigns an explicit place to “the body” in the system’s ecosocial environment.
Finally, the chapter discusses the nature of the typical objects of MSS study. Although they may include instances of language, frequently they do not. As a result, MSS objects of study tend to be fundamentally different from the linguistic objects studied in SFL. They are typically (although not exclusively) simultaneously rather than sequentially constituted. One consequence of this difference is that – although MSS is derived from SFL – its focus has shifted and has become, in a sense, inherently paradigmatic in the way it models the system. Because of this, many MSS theoreticians favour a descriptive architecture, which does not accommodate the concept of “duality of patterning” in the same way as SFL does. However, the thesis proposes to renegotiate the concept of duality of patterning, taking paradigmatic choice rather than syntagmatic sequence as the point of departure for the second articulation of meaningless but meaning-differentiating differences.
Chapter 5, “Shortcomings of MSS”, carries out an analysis of one case from the corpus of the thesis (Nike, Inc. vs. Li-Ning Company, Inc.) in order to substantiate the hypothesis that state of the art MSS has no descriptive readiness for graphic form and, as a result, will fall short of explaining the differences and similarities of the cases in the corpus.
Chapter 6, “Graphetics”, explores a diachronic approach to graphic expression. The resulting theory of graphetics pivots around the concept of “the event of articulation”. The notion that a trademark, which is perceived in the event of confusion, is the material trace of a prior event of articulation is crucial to the way the thesis proposes to improve the assessment of likelihood of confusion.
At the core of “the event of articulation” is, of course, the concept of graphic (or indeed multimodal) “articulation” inspired by the linguistic study of articulatory phonetics. However, a new definition of articulation is needed because the object of study is not language. Ideally, because the theoretical frame is MSS, such a definition should be able to capture any articulation of any signifier in any semiotic modality. Therefore, the thesis defines articulation as an event, which occurs when a performer acts bodily to manipulate the material substance of a semiotic mode as an effect of his communicative intent. This concept is different from the linguistic one. The linguistic study of articulatory phonetics is based on a localized, substance-ontological, synchronic and general description of the human vocal tract, which makes sense because the various organs of the vocal tract can produce distinct sounds that distinguish linguistic meanings. However, a given graphic form can be produced in countless different ways using many different parts of the body. Therefore, the thesis proposes a non-localized, process-ontological, diachronic and individual view of the body as the point of departure for the concept of multimodal articulation. Such a concept of articulation must factor in the affordances and restrictions for action presented by both the body and the various substances manipulated in an act of articulation, as well as the way the body interfaces with them. Chapter 6, discusses “the body”, “tools” and “substances” as sources of affordance for articulation.
Chapter 7, “Graphology”, explores a synchronic approach to graphic expression. It is the thesis’ primary response to the requirements set forth by the research question. The proposed theory of graphology pivots around the concept of paradigmatic choice relations. The chapter asks which formal choices, or structural variables, are available to us when we make graphic meaning. The chapter has three sections. The first one proposes a rudimentary method of analysing the simultaneously constituted graphic structure. This is necessary because it is virtually impossible to discuss structural choice potential without reference to instantiated structure. The second and third sections focus on two crucial aspects of formal properties of graphics; space and form.
Structure
At an overall level, the thesis proposes to analyse graphic structure in terms of structural density (an overall count of the structural ‘L-1’ occurrences in a graphic structure) and structural complexity (a count of the structural ‘L-1’ variants in a graphic structure). Both these analytical concepts are described as choice relations; continuums ranging from e.g. high to low complexity. Furthermore, analysing graphic structure in terms of structural contrast (the relative distribution of density and complexity in a graphic structure) is suggested.
Space
The thesis proposes to analyse a graphic surface in terms of the regions and clusters of regions into which it has been subdivided. When regions are identified, they can be described in terms of their relative magnitudes, locations, and orientations.
Form
The structural variables of form are the key to understanding the expression plane of graphic style. The thesis proposes to regard a shape as a configuration of instantiated choice relations between straight/un-straight, round/angular, and convex/concave. A given shape can appear to us in many guises that are configurations of instantiated choice relations between positive/negative, line/mass, and compounded/conjoined. Both the variables of shape and enshapening correlate with the variables of space and structure to a limitless number of combinations.
Chapter 8, “Application”, discusses the application of a combined graphetic and graphological approach to forensic comparative analysis of graphic trademarks. First, the legal discipline of IPR (Intellectual Property Rights), of which trademark practice is a sub-discipline, is introduced. Second, the thesis carries out an exemplary comparative analysis of the Danfoss and Dazhou trademarks to demonstrate the aptness of the proposed approach. The introduction to IPR discusses theoretical issues of compatibility between MSS theory and trademark practice. The discussion addresses the seeming fact that the synthetic approach to comparison in trademark practice and the analytical MSS approach are at odds. However, the thesis argues that this is not so. The proposed analytical scheme does not qualify as the “pedantic scrutiny of differences in detail” (Wallberg 2004:95), which trademark literature warns of. Rather, it analyses overall qualities of graphic structures by describing what variants are instantiated in them and in what measure and to which proportions. The result can be presented as a statistical profile.
The exemplary comparative analysis of the Danfoss and Dazhou trademarks shows that a combined graphetic and graphological approach in an overall MSS framework is indeed a systematic, precise, measurable and comparable alternative to the current standard in the assessment of likelihood of confusion.
One aspect, however, presents more of a challenge that the others. The objective measurability of structural variables is made very difficult by the fact that we only ever have access to the tokens of a trademark type. Because such tokens can vary in size, we must relate measurements to a structure-internal constant rather than, for example, structure-external units of measurement (such as SI). This makes any measurement relative rather than absolute. In response to this, as an example, the thesis proposes the concept of “weight scale rating” (WSR) as an expression of stroke dynamics, which makes measurements of stroke dynamics in two trademarks comparable regardless of the size of the tokens.
The thesis can be regarded as a step towards a more systematic, precise, measurable and comparable assessment of likelihood of confusion. However, a lot of future research is required in order to operationalise all the proposed descriptive variables in a way that is similar to WSR.
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