I. INTRODUCTION [as in the "Spatialist" affidavit]

This opinion has been prepared at the request of a trademark lawyer with McCarthy Tetrault, Toronto, acting on behalf of a company opposing another company's application to register UN-PETROLEUM JELLY. I have been asked whether UN-PETROLEUM JELLY is descriptive of the wares in association with which it is to be used.

I have made a lexicographical study of un- in the sense in which it is prefixed to petroleum jelly, and I wish to show that:

(1) un-, prefixed to a noun, as in the trade mark in question is a generic feature of current English; (2) UN-PETROLEUM JELLY is clearly descriptive of the character and qualities of the product it refers to.

Lexicography is based primarily on evidence of usage as observed in well-edited books, journals, and other media. Lexicographers constantly monitor such sources for new words and meanings entering the word stock of the language. It is estimated that over five hundred neologisms (including phrasal compounds, idioms, prefixes, suffixes, and combining forms such as dial-a- and -athon) become part of the English vocabulary each year. When there is sufficient evidence of a new word or meaning, it qualifies for entry in dictionaries.

Language being a continually changing entity, no published dictionary, including the great Oxford English Dictionary or OED (Second Edition, 1989, 20 vols.), can be quite up to date. Even the definitions of the older words are sometimes challenged by experts on the basis of new evidence or a better analysis and interpretation of the old evidence. A case in point is "What makes people peruse?" (T. M. Paikeday, English Today, Cambridge University Press, July 1992, pp. 33 - 38) which seeks to show that the dictionaries have missed the current meaning of peruse. A paper by this lexicographer ("Vagina v. vulva") to be published soon[Please see "Female Trouble." Copy Editor. Oct - Nov. 1998. pp. 1.6] will show that American and British dictionaries (including the mother of all English dictionaries) have no clear notion of the female genitals.

The prefix un- expressing negation or contradiction, as in untrue and uncalled-for, has roots going back to a primitive Indo-European ne meaning "not." Cognates exist in classical languages such as Sanskrit and Greek, in both of which it is used as a- or an-, as in the Greek átomos (atom) meaning "not divisible."

This is not to be confused with another un-, expressing reversal or deprivation, originating in Indo-European ant- (meaning "front, forehead"), cognate with Greek anti (meaning "against"). English unfasten, unlace, etc. in which un- is prefixed to verbs are of this second group.

The un- of un-petroleum jelly is the first of the two prefixes, entered in the major dictionaries as un-¹. This un- is normally prefixed to adjectives, participles, and to nouns and adverbs derived from them. Examples of un- + derived nouns are unclarity, unfulfilment, and unhappiness. Examples of un- words in which the noun is not derived from an adjective or participle are unbalance, unbelief, unconcern, undeath, undress, unease, unquiet, unreason, unrepose, unrest, and untruth. The OED makes the following observation about this kind of word-formation: "From the beginning such nouns have been almost entirely restricted to those of an abstract nature [italics mine] so that forms with suffixes are numerous." (OED, un-¹, definition 12a)

IV. THE NEW MEANING OF UN- + NOUN WORDS

In un-petroleum jelly, the phrasal compound to which un- is prefixed is neither a derivative in regard to formation nor is it abstract in meaning. We will therefore consider only non-derivative un- nouns (simple and compound) that have concrete referents. Concrete is used of nouns in the wider sense of "all substantives not abstract, i.e. all those denoting 'things' as distinguished from qualities, states, and actions ... e.g. crossing, verbal noun, i.e. abstract noun of action, concretely, a crossing in a street, on a railway, etc." (OED, concrete, adj. def. 4a). Things referred to as concrete need not be material or tangible, they only have to exist in reality, as distinguished from existing in the mind. In the context of trade marks, all goods and services are concrete; otherwise they could not be bought and sold.

We will now examine a few citations given in the OED for such un- + concrete nouns to see if there is more to it than the merely negative or contradictory meaning of un- + noun. (Keywords have been boldfaced).

1. "The English noses in their shapes and unshapes." (c.1843: Carlyle, Hist. Sk. Jas. I & Chas. I (1898), 269) [Though shape is an abstract noun, unshape is used here in a concrete sense; see OED, shape, def. 14]

2. "Here I suddenly arrested myself, for my unaddress stared me in the face." (1853: E. S. Sheppard, Charles Auchester, II.211)

3. "In this un-country there was blue sky and light, consent and no sin." (1964: W. Golding, Spire, ix.178)

4. "Reading experts always need tricky new gimmicks to put into their unbooks." (1982: Underground Grammarian, Nov. 5)

As you can see from the dates of the citations, the un- + concrete noun seems to be a relatively new development in English. The OED has no earlier citations than the 1843 one from Carlyle. As the OED editors have observed and the dictionary listings show, from the beginnings of the English language, un- words such as Old English unfrith ("un-peace" or "dissension") and Middle English unbihoof ("un-benefit" or "disadvantage") are all of an abstract nature.

Strictly speaking, in un-petroleum jelly, un- is prefixed to petroleum which is used attributively, as a modifier of jelly. The OED has this to say about such words: "The prefixing of un- to nouns used attributively is rare and usually not intended seriouly" (un-¹, def. 12b). Examples given are: Unchange-Gospel-Rule (1673), unquality Ladys (1771), uncountry gentlemen (1823), undining-room (1845), uncompany costume (1852), uncurrency-style (1852), unbusiness men (1880), unhousehold-name (1894), and unsociety-people (1898). Such formations may have been rare (the intent is questionable) when the OED was first published in 1928, but as the evidence will show, they have since become frequent enough to qualify as a generic feature of the English language.

I surmise George Orwell's use of unperson in his 1949 book 1984 helped to popularize the prefixing of un- to concrete nouns. Here is the Orwell citation and two more, as given in the OED under unperson:

5. "Syme was not only dead, he was abolished, an unperson." (1949: 'G. Orwell', Nineteen Eighty-Four, ii.159)

6. "Beria is already an 'unperson,' the record of his career 'unfacts.'" (1954: Economist, 18 Sept. 883/2)

7. "The concentration camp was a factory for processing people into un-persons." (1961: Guardian, 28 Apr. 8/5)

The OED definition of unperson runs thus: "A person who, usu. for political misdemeanour, is deemed not to have existed and whose name is removed from all public records. In extended use, a person whose existence or achievement is officially denied or disregarded; a person of no political or social importance."

But that definition has more to it than mere negation or contradiction. In the abstract, negation or contradiction would mean exact opposite, as unbalance, unbelief, etc. quoted above. This is in the very nature of abstractions, because an abstraction, by definition, is something taken out or removed from a larger whole. On the other hand, something that exists in reality is a complex of many characteristics or qualities. Compare crossing with a crossing (as above); the latter could be a deer crossing, level crossing, school crossing, street crossing, etc. and each of these, again, could have individual characteristics or qualities when you examine it in the concrete. So when one makes a negative statement about something concrete, only a particular characteristic or quality would be affected, not its entire existence.

So the unshapes of English noses does not refer to the absence of noses, but to shapes that Thomas Carlyle considers unshapely or that perhaps are misshapen, unaddress may refer to a wrong address, unbook is a book that the speaker does not approve of, un-country is not a mere black hole but a place with a "blue sky and light," unperson is not a nonentity in the literal sense but someone whom the authorities would wish away, and unfacts are facts that are considered unfavourable. Far from being negative or contradictory, these un- + noun words stand for real and positive entities.

More citations of the use of un- + noun words from contemporary popular literature are given below. They are given in extended form for the sake of full context.

8. UN-HALLOWEEN: "We were now able to sell un-Halloween candy for the season and cater to two different types of women: those who want to do it themselves, shop for the idea and buy the materials, and those who want it all done for them." ("Decorating for autumn," Gifts & Decorative Accessories, August, 1990, p. 36)

9. UNKID: "Unkids must pay. O.K. Mom and Dad. Here's the thing. It's Kids' Night. And seeing that you're not kids, there's no reason why you should eat free. So, you gotta pay. But don't feel bad. Think about the great deal you're getting with the kids eating free and taking home free Nickelodeon stuff. Besides, we wouldn't be teaching you anything by giving you everything on a silver pizza pan." ("If it's Tuesday, this must be Pizza Hut," Adweek's Marketing Week, July 30, 1990, p. 29)

10. UN-OFFICE: "If you haven't clearly stated your open-door policy, take a cue from Bill Arnold, CEO of Centennial Medical Center in Nashville. Arnold got rid of his door -- he hung it from the ceiling in the lobby. He also got rid of his desk. Then he moved the staff coffeepot into his un-office. The days of pressuring and punishing are over, says Arnold. Quality comes from within. Since he did all these wild and crazy things, the hospital's profits have climbed and late payments have dropped. Arnold and Woolpert have a flair for leadership. They value people. They facilitate in the true, literal sense of the word: 'to make easy'." ("How to supervise (without spying)," Working Woman, Jan., 1991, p. 27)

11. UNPOWDER: "In blaming Gunner's Mate Clayton Hartwig for the explosion that killed 47 sailors on the battleship U.S.S. Iowa last year, the Navy leaned heavily on its own $4 million technical investigation. But last week, the Navy's findings were 'eviscerated,' to use the word of Georgia Democrat Sam Nunn, chairman of the Senate Armed Services Committee, by a congressionally ordered review of the Navy's work. Where the Navy had found 'foreign material' in the Iowa's gun, indicating that Hartwig had used a chemical detonator to blow up the gunpowder in Turret 2, tests by the federal government's Sandia National Laboratory found only chemicals from gun lubricant -- and seawater. Whereas the Navy said the unpowder [sic] could not go off accidentally, Sandia weighted a stack of gunpowder bags and dropped it 3 feet to a deck. On the 18th try, the powder ignited. ("An honorable if tragic discharge," U.S. News & World Report, June 4, 1990, p. 13)

12. UN-READER: "The assistant professor of English at the Faculty of Educati on, University of Toronto, also points out that there is no such creature as an adolescent non-reader. 'Un-readers, yes,' he said. 'Non-readers, nonsense. Unless there is a physical problem, but this is usually evident. In the area of reading, more than in any other part of his education, the adolescent slow learner is a victim.'" (The Globe & Mail, 17 Oct. 1974, p. W-11)

13. UN-VACATION: "I recently discovered a new type of vacation. It is inexpensive, easily arranged, and does not involve the hassles and inconveniences of most trips. It may indeed be the ultimate vacation.... The morning of departure was rainy and cold. I sat drinking a cup of tea, enjoying the warmth and cleanliness of my apartment. I thought, "How would it be to stay here for a week, 'on vacation'?" .... For the next six days I stayed home on vacation. I began a systematic reading of the 325 volumes of Rudolf Steiner's collected works -- and got seven pages into volume 1.... I slept a great deal, going to bed and getting up whenever I felt like it without regard for the time of day. I felt like I was catching up on a sleep deficit begun twenty years ago in college. I didn't feel bored or lonely, though when the time came for me to reenter the world I was ready to. And my friends commented on how rested and well I looked." ("The un-vacation," East West, June, 1990, p. 96)

It is needless to add that the above citations attest to the popular acceptance of the un- + concrete-noun formation. Its meaning is so transparent to the average educated user of the language that the professor of English felt it unnecessary to explain what he meant by un-reader. But he distinguishes the word from non-reader and goes on to say that un-readers are just slow learners. It is the same case with the editor of East West who felt confident about using un-vacation in the heading of the article, although the author himself does not seem to have used the word.

The transparency of a linguistic formation to the average educated user of the language (formerly called "native speaker") is a good test of its genericness. As the evidence presented above shows, everyone knows what un- in the new sense means and therefore anyone may prefix un- to the name of anything in existence to denote something that is different from what the unprefixed word means.

This must apply to the entire English vocabulary from aardvark to zebra. Thus if one hears of an "un-aardvark," the idea of some aardvark that is not your typical anteater comes to mind, probably an aardvark which, having acquired a taste for better things, turns up its snout at ants; the context would give the complete meaning. And if one hears of an "un-zebra," one would think of a zebra that is different from the ordinary kind, as a zebra sporting a checked coat instead of a striped one.

This is descriptiveness pure and simple, as "cold" is descriptive of ice and "bookshop" is descriptive of a shop that sells books, although, if the difference between "something" and "un-something" only referred to some accidental characteristic of the thing in question, the "un- + noun" word might not have been so clearly descriptive. That is why I believe it would be un-English to refer to a freak of nature such as a double-headed zebra or one that does not eat grass as "un-zebra" because the essence of zebraness is not in the zebra's habits or habitat but its being striped. The same applies to the ant-eating nature of the aardvark. The difference made by the prefix un-, therefore, is an essential difference, not an accidental one, and the un- + concrete noun becomes clearly descriptive.

The perfect logical description of any object is by genus and differentia specifica, as when "man" is described as "rational animal," the genus word being animal and rationality the specific difference that distinguishes the human being from other animals. Or when a rose is identified as Rosa odorata (tea rose), which is genus Rosa, species odorata. An "un-tea rose" would be a tea rose that does not have its typical spicy fragrance.

SUMMARY & CONCLUSION

The name UN-PETROLEUM JELLY, therefore, is clearly descriptive of what it stands for. To the average educated user of English, it means an ointment or salve like petroleum jelly but with the essential difference that it contains something other than real petroleum jelly. The same goes for any un-thing, whether it is UN-COFFEE, UNCOLA, UN-JEAN, UN-JUNKFOOD, UN-KETCHUP, UN-SCREW, UN-SOAP, or UN-UMBRELLA.

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© 2002, Thomas M. Paikeday