Urban Dictionary: The New Expert Witness?
“Fuct”: not only is this the name of the company that Erik Brunetti was trying to trademark, but also what he was likely thinking when he instead wound up with a case, Iancu v. Brunetti, in front of the Supreme Court. The name was originally refused by the United States Patent and Trademark Office, and subsequently by the Trademark Trial and Appeal Board, on the basis of Section 2(a) of the Lanham Act, which cites that a trademark can be rejected if it “consists of or comprises immoral, deceptive, or scandalous matter.” Brunetti’s proposed brand name, however, is particularly complex in that it only alludes to a slur, motivating his appeal on the decision. [1]
Upon appeal to the United States Court of Appeals for the Federal Circuit, the court affirmed that the Board did not err in refusing to register the mark under section 2(a) of the Lanham Act. However, the court also found that the bar on “immoral” or “scandalous” brands was in violation of the Free Speech Clause of the First Amendment. This latter issue was recently heard by the Supreme Court, where the USPTO seeks to restore the ban on brands consisting of immoral or scandalous matter.
Beyond the evident free speech questions that Iancu v. Brunetti poses, the case also has brought attention to the forms of evidence presented in court. In its argument in linking the name “Fuct” to its implied expletive counterpart, the USPTO provided an Urban Dictionary definition of ‘fuct,’which defined the term as the past tense of the verb ‘fuck,’’ finding the term to be ‘recognized as a slang and literal equivalent of the word “fucked,”’ with ‘the same vulgar meaning.’”[3] The Appeal Board ascertained the validity of their use of evidence, dismissing Mr. Brunetti’s challenge that “Urban Dictionary is not a standard dictionary edited by lexicographers and the author of the definition cited by the Board lacks lexicographic expertise.”[4]
Ultimately, the dictionary debate does not have too much of a bearing on the case, as the USPTO counsel established that Brunetti’s vulgar intent in the use of “fuct” in other ways: outside of court, Brunetti himself has otherwise made clear the connotations behind the brand name, expressing his intention of phonetically mirroring a slur.[5] Still, Iancu v. Brunetti highlights a growing propensity in court to submit evidence arising out of informal forums lacking scholarly or professional authority. In fact, Brunetti is not the first case to use Urban Dictionary as evidence, a 2013 New York Times article highlights that Urban Dictionary “was used by courts to define iron (‘handgun’); catfishing (‘the phenomenon of Internet predators that fabricate online identities’); dap (‘the knocking of fists together as a greeting, or form of respect’); and grenade (‘the solitary ugly girl always found with a group of hotties’).” [6]
While Urban Dictionary has only recently been invoked in court, it is important to understand how it compares to other methods used to define words in court. When the definition and common usage of a word is important as evidence, as oftentimes happens in trademark law, parties hire linguists as expert witnesses. Yet, as research professor of linguistics Roger Shuy attests, linguists appearing in the courtroom are oftentimes found to be either too technical in their testimony or too straightforward, and thus when they are unable to strike the proper balance they are in both cases seen as unhelpful to the jury and thus their testimonies are excluded as evidence.
In the face of these complications, Urban Dictionary provides a cheaper alternative to hiring linguists as expert witnesses and is able to provide the same essential functions as hired experts. While the majority of linguists appearing in trademark litigation usually appear in cases involving questions of the likelihood of consumer confusion or market dilution (for example, Steak N Shake Co. v. Burger King Corp. involved the question of whether Burger King could use the name “steakburger” when it was already being used by another restaurant chain), Pro-Football, Inc. v. Harjo offers a parallel to Iancu. In this case, linguists were called upon to examine the word “redskins” also in the face of the Lanham Act, this time in its provision against disparagement of persons, institutions, beliefs, or national symbols.
After admitting the testimony of linguists for both Petitioners and Pro-Football, the Trademark Trial and Appeal Board (TTAB) was able to make only five limited findings of fact: in summary, that the word “redskin” has been used and in many contexts continues to be understood in reference to Native Americans in a derogatory manner, but that the word since the 1960s has often appeared in reference to the football team. The TTAB, in effect, was only able to establish that the word has been historically understood in reference to Native Americans and has more recently also connoted the football team, and that in reference to Native Americans, its meaning is derogatory. Given the limited nature of these findings of fact, it is not surprising that Urban Dictionary is able to establish similar findings. One highly-rated definition seemingly captures all five facts:
An offensive and derogatory term referring to native americans (sic). Comes from when the government paid for each 'indian' one killed. Instead of carrying the bodies they would take the scalps to prove they had murdered a native american (sic).
When plural the name of a NFL team from Washington DC
It seems there is a too common belief that the word redskin is not offensive so I dare those who believe that to go try that word out on a native american person and see their reaction (sic)
The most highly-rated definition reads “A derrogatory term used twoards the American Indians primarily during the wester expoditions and by white democrats during the Civil War” (sic). Yet these poorly proofread definitions also highlight the fact that citing Urban Dictionary as linguistic evidence has its limitations. Brunetti himself took up this probe by pointing out that only one definition of “fuct” in Urban Dictionary associated it with the vulgar slur, while two others defined the word as his brand name. In response, the Patent Trial and Appeal Board ascertained that it “reasonably focused on the highest rated definition, suggesting that it is more common or accurate than the alternative, non-vulgar definitions.”[7]
It is not always true that, contrary to the USPTO Board of Appeals’ claims made in Iancu v. Brunetti, the highest rated definition signals accuracy or commonality: Aaron Peckham, founder of Urban Dictionary, revealed to The New York Times that private analyses revealed that “funny” is the number one reason people give for voting for posts. Given this analysis, it is possible that the USPTO Board of Appeals’ reliance on the most highly rated definition of “fuct” is unfounded because that definition signals comicalness, and not common usage.
Case law supports that, while commonality may be a proper measure for assessing the accepted definition of a word, there is no guarantee that the ‘highest rated definition’ on Urban Dictionary is a sound way for which to assess it. In 2009, State, Department of Motor Vehicles v. Junge reached the Nevada Supreme Court after the DMV refused to allow William Junge renew his personalized license plate “HOE.” Urban Dictionary was at the center of debate, as it was the only source that the DMV relied on in denying the plate on the basis that the word was slang for “whore.”[8] Nevada’s Supreme Court affirmed that “[s]ince definitions are user contributed, they can be personal to the user and do not always reflect generally accepted definitions for words,” and consequently, “a reasonable mind would not accept the Urban Dictionary entries alone as adequate to support a conclusion that the word HOE is offensive or inappropriate.”[9] Indeed, Mr. Junge had no intention of invoking a slang meaning with his license plate, as he had actually wanted it to read “TAHOE” and had to amend his choice because that plate was not available.[10] In this case, the “common” meaning of a word, as determined by Urban Dictionary, was useless.
Certainly, State, Department of Motor Vehicles v. Junge makes it clear that when a case hinges on a definition, Urban Dictionary itself is not an acceptable source. In its own terms and conditions, the dictionary forum makes its limitations clear, stating that the company “does not and cannot control all Content published by third parties to the Website, and does not guarantee the accuracy, integrity or quality of such Content.” [11]
These cases ultimately reveal that online forums and dictionaries are best used for context to be considered with the bigger picture, and cannot stand as reliable sources in themselves. As we move further into the digital revolution and subsequently increasingly face the democratization of information, further regulation and ultimately understanding of online forums is essential if they are to have a continued presence in court.
Sources:
[1]Lanham Act Trademark Act of 1946 §2(a), 15 U.S. Code § 1052(a).
[2] Iancu v. Brunetti, 877 F.3d 1330 (Federal Circuit 2017), cert granted sub name Brunetti, No. 18-302, 2019 WL 98541 (U.S. Jan 4, 2019).
[3] Ibid.
[4] Supra note 2 at appendix 7a.
[5] Hine, Samuel. "How an O.G. Streetwear Brand Took a Free Speech Case All the Way to the Supreme Court." GQ. January 30, 2019. Accessed April 15, 2019.
[6] Kaufman, Leslie. “Urban Dictionary Finds a Place in the Courtroom.” New York Times. May 20, 2013. Accessed April 15, 2019.
[7] Iancu v. Brunetti, 877 F.3d 1330 (Federal Circuit 2017), cert granted sub name Brunetti, No. 18-302, 2019 WL 98541 (U.S. Jan 4, 2019).
[8] State, Department of Motor Vehicles vs. Junge. (Supreme Court of Nevada, May 21, 2009).
[9] Ibid p. 3-4
[10] Supra note 8 at p. 1
[11] “Terms of Service.” Urban Dictionary. http://about.urbandictionary.com/tos. Accessed April 15, 2019.