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标题：A Legal-linguistic-semiotic Perspective of Trademark Dispute in McDonald’s vs. McCurry
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作者：Noraini Ibrahim ; Radha M. K. Nambiar
期刊名称：Pertanika Journal of Social Sciences & Humanities
印刷版ISSN：0128-7702
电子版ISSN：2231-8534
出版年度：2013
卷号：21
期号：S
页码：91-100
出版社：Universiti Putra Malaysia
摘要：In 2009, a landmark victory was won by McCurry (a restaurant serving Malaysian food) over McDonald's (the famed American fast food chain) when the Federal Court, the highest court in Malaysia, ruled that McCurry could continue using the prefix 'Mc' in its name. This case brings to fore the growing body of trademark litigation, where trademarks are deemed as "proprietary language bits of linguistic or semiotic material that people, corporations and institutions in very real but limited sense own" (Butters, 2010, p. 352). The issue here is whether or not the commercial use of a bound form morpheme, Mc, like in McDonald's, has changed from its original meaning to the extent that it takes a new meaning in the public domain. When such a case comes to court, it is a practice in many developed countries to call upon experts, including linguists to assist. This was, however, not the case when the case was first heard at the Kuala Lumpur High Court, and later at the Court of Appeal. As such, there was no legal-linguistic-semiotic investigation into whether or not the use of Mc by McCurry could have led to an unfair advantage over McDonald's. Hence, this is the thrust of the paper. Can the trademark Mc be exclusive in referent to only McDonald's or can another similar business outfit use the prefix Mc without raising any confusion to consumers. In order to answer the question on the use of trademark or 'this bit of language', a classroom task was carried out in an undergraduate course, SKBE3013 Language and the Law. To collect the relevant data, a social media, the Facebook was employed as a research innovation. However, as the case has been decided by the Federal Court, this paper will take a retrospective approach that offers an insight into how an understanding of the use of language in a dynamic context could have assisted the court
关键词：Linguist; patronymic prefix; ;trademark; trademark law; trademark ;litigation; var currentpos;timer; function initialize() { timer=setInterval("scrollwindow()";10);} function sc(){clearInterval(timer); }function scrollwindow() { currentpos=document.body.scrollTop; window.scroll(0;++currentpos); if (currentpos != document.body.scrollTop) sc();} document.onmousedown=scdocument.ondblclick=initializeNoraini Ibrahim and Radha M. K. Nambiar;92;Pertanika J. Soc. Sci. & Hum. 21 (S): 92 - 100 (2013);INTRODUCTION;From the outset; this paper has been ;motivated by an interest; as succinctly put ;by Shuy (2002); about an authority that ;stems from: ;Two very different sets of attitudes; ;values; and beliefs of fields involved ;- law and linguistics. Law is; ;by definition; prescriptive and ;autocratically final; asserting that ;once law is decided; everyone ;is subjected to it. In contrast; ;linguistics is by definition; ;descriptive and democratic; ;asserting that language behaviour ;is determined by the way it is used ;by the people who use it. These ;two different guiding principles ;sometimes face each other; head-on; ;when language issues are debated ;in the legal setting (p. 6).;This paper deals with an issue of ;trademark infringement heard in a Malaysian ;courtroom. As the case was heard purely ;as a legal matter; there was no linguistic ;inquiry despite the fact that the issue ;involved a 'bit of language'. The question ;is; would the decision have been different ;if a legal-linguistic-semiotic inquiry was ;conducted. Would the presence of an expert ;witness; a linguist; who could inform the ;court of language and meaning-making; ;make a difference in the decision. Can our ;Malaysian courts move forward in tandem ;with the developments in legal inquiry as ;observed in many developed countries.;This paper thus attempts to show; ;albeit retrospectively; that issues such as ;trademark infringement; which straddle ;language and the law; may be heard with ;contributions from linguistics. Secondly; ;this paper will also attempt at offering an ;innovation in research methodology through ;the use of Facebook; a popular social media ;among the young; as a tool for inquiry with ;its wide reach and multiple channels (Lampe ;et al.; 2011).;When does law and language collide ;in the courtroom; and when will an expert ;linguist be relevant. In order to capture the ;role of expert linguists; Ainsworth (2006) ;states that "One type of case in which ;linguists routinely testify in the United States ;is trademark litigation; often with both sides ;offering linguistic testimony" (p. 262). This ;body of interest; as Butters (2010) reports ;(with an acknowledgment of the linguists ;involved); is developing actively in Canada; ;Australia; Chile; South Africa; United ;Kingdom; and Japan. However; Coulthard ;and Johnson (2010) pointed out that not all ;jurisdictions actually produce courtroom ;testimony. One notes that Malaysia has yet ;to be mentioned in either documentation; and ;hence the question is; what can trademark ;linguistics offer Malaysia; bearing in mind ;that trademark linguistics is about "language ;that one owns" (Butters; 2010; p. 351).;To contextualize this paper; let us refer ;to 2009; where a landmark victory was ;won by McCurry Restaurant (a restaurant ;serving Malaysian food) over McDonald's ;(the famed American fast food chain); when ;an eight-year battle ended with the Federal