Names, Naming, and the Law: Onomastics, Identity, Power, and Policy [1 ed.] 9781032556413, 9781032556420, 9781003431510

Citation preview

Names, Naming, and the Law

Across many social and commercial domains, governments regulate the official names used to identify individuals, groups, places, companies and products, and even diseases. This innovative volume investigates the relationship between names and the law, with its significant implications for identity (individual, familial, race, ethnicity, gender, species, brand, and product industry, etc.) and status (social, scientific, economic, and political). I. M. Nick introduces the state of the art on this interdisciplinary topic—providing a diachronic and synchronic view of onomastics and the law—and expert contributors examine seminal Anglo-American legal cases to demonstrate how name polices relate to broader questions of power, privilege, and politics. Each chapter offers an overview of key issues in onomastics and language policy across multiple geo-cultural contexts and applies the interdisciplinary insights to real-world policies. This book is a valuable resource for scholars of legal linguistics, forensic linguistics, onomastics, language policy, and cultural studies. I. M. Nick holds a BA (Germanics); BSc (Clinical/Abnormal Psychology); MA (German Linguistics); MSc (Forensic and Investigative Psychology); PhD and the German “Habilitation” (English Linguistics). Her onomastic research focusses on anthroponymy, identity, and language policy. A past President of the American Name Society (ANS), she is Editor-in-Chief of Names: A Journal of Onomastics.

Names, Naming, and the Law Onomastics, Identity, Power, and Policy

Edited by I. M. Nick

First published 2024 by Routledge 605 Third Avenue, New York, NY 10158 and by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 selection and editorial matter, I. M. Nick; individual chapters, the contributors The right of I. M. Nick to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Names: Nick, I. M. (Iman Makeba), editor.

Title: Names, naming, and the law : onomastics, identity, power, and

policy / edited by I.M. Nick.

Description: Abingdon, Oxon [UK] ; New York, NY : Routledge, 2023. |

Includes bibliographical references and index. |

Identifiers: LCCN 2023011851 (print) | LCCN 2023011852 (ebook) |

ISBN 9781032556413 (hardback) | ISBN 9781032556420 (paperback) |

ISBN 9781003431510 (ebook)

Subjects: LCSH: Names, Personal–Law and legislation. | Names,

Geographical--Law and legislation. | Trademarks--Law and legislation. |

Personality (Law) | Status (Law)

Classification: LCC K629 .N36 2023 (print) | LCC K629 (ebook) |

DDC 346.01/2--dc23/eng/20230713

LC record available at https://lccn.loc.gov/2023011851

LC ebook record available at https://lccn.loc.gov/2023011852

ISBN: 978-1-032-55641-3 (hbk)

ISBN: 978-1-032-55642-0 (pbk)

ISBN: 978-1-003-43151-0 (ebk)

DOI: 10.4324/9781003431510

Typeset in Sabon

by Taylor & Francis Books

For Frank

Contents

List of illustrations Abbreviations List of contributors 1 Names, Naming, Identity and the Law: A Basic Introduction

ix x xiv 1

I. M. NICK

2 Patrilineal Bias in the Adoption of Surnames following Marriage in the United Kingdom and the United States

19

ELEANOR PETERS

3 Naming, Expressive Interests, and the Law: The Implications of Governmental Form Design

35

LAURA A. HEYMANN

4 Laws and Policies Regulating Personal Names and Transgender and Gender Diverse Identities in the US and Canada

51

SHARON N. OBASI AND I. M. NICK

5 Both And vs. Either Or: The Challenge of Official Names and Naming for the US Census in Multicultural America

69

I. M. NICK

6 Applied Toponymy in the United States: A Compendium of the History and Policy Development of Geographic Names and Naming

90

ROGER L. PAYNE

7 Toponomy and Law: Neighborhood Names in Legal Perspective NESTOR M. DAVIDSON AND DAVID FAGUNDES

107

viii

Contents

8 The Law on Geographical Indications and Traditional Food Names: Protecting Local and Regional Interests in a Global Arena

123

CAOIMHÍN MACMAOLÁIN

9 From Fluoxetine to Prozac®: How the Pharmaceutical Industry Builds Brand Identity through Prescription Drug Naming

140

PASCALINE FAURE

10 Naming Unnamed Diseases: Governmental Policies, Historical Practices, and Identity Repercussions

157

I. M. NICK

11 The Name of the Rose (and Everything Else): How Codes and Practices in Naming Biological Species Reflect Cultural Identities

186

STEPHEN B. HEARD

12 Names, Identity Interests, US American Trademark Law, and Collective Face

206

MICHAEL ADAMS

13 What’s in a Name? Linguistic and Legal Aspects of Company Names, Product and Service Names, Trademarks, and Brands

221

ALAN DURANT AND JENNIFER DAVIS

Index

239

Illustrations

Figure 11.1 A, B, and C: Time trends in usage frequency for “long-tailed duck”, “thick-billed longspur”, and “spongy moth” compared with “oldsquaw”*, “McCown’s longspur”*, and “gypsy moth”*, respectively.

199

Table 11.1 Summary of etymological practices in species naming

192

Abbreviations

ACE ADD AIDS AOS AOU AQE ASA BAN BID BRFSS CAO CBD CDC CFS CJEU COGNA COVID-19 CPS DAW DCF DF DMEPA DOJ DOMA DSM DTCA DVLA ECHR ECOSOC EMA EC ESA ESC

Angiotensin-Converting Enzyme Attention-Deficit Disorder Acquired Immune Deficiency Syndrome American Ornithological Society American Ornithologists’ Union Alternative Question Experiment Acetylsalicylic Acid British Approved Name Business Improvement District Behavioral Risk Factor Surveillance System Civil Aviation Organization Community Benefit District Centers for Disease Control and Prevention Chronic Fatigue Syndrome Court of Justice of the European Union Council of Geographic Names Authorities Coronavirus Disease-19 Current Population Survey Dispense As Written Dénomination Commune Française Erectile Dysfunction Division of Medication Error Prevention and Analysis Department Of Justice Defense Of Marriage Act Diagnostic and Statistical Manual Direct-To-Consumer Advertising Driver and Vehicle Licensing Agency European Convention on Human Rights United Nations’ Economic and Social Council European Medicines Agency European Commission Entomological Societies of America Entomological Societies of Canada

Abbreviations EU FDA FDCA FSIS FTA GATT GAMC GAO GI GN GSK HER HIPAA IBS ICD ICECI ICF ICOS ID IND INN IP ISMP IUPAC JAN LASA MAP MUCMI MUD MUS NCS NCT NCTE NDA NRG OAS OMB ONS OPDP OTC PAIGH PASC PCC

xi

European Union Food and Drug Administration Food, Drug and Cosmetic Act Food Safety Inspection Service Face-Threatening Act General Agreement on Tariffs and Trade Gender-Affirming Medical Care US Government Accountability Office Geographical Indications GeographicalName GlaxoSmithKline Human Epidermal growth factor Receptor Health Insurance Portability and Accountability Act Irritable Bowel Syndrome International Statistical Classification of Diseases, Injuries, and Causes of Death International Classification of External Causes of Injuries International Classification of Functioning, Disability, and Health International Congress of Onomastic Sciences Identity Document Investigational New Drug Application International Non-Proprietary Name Intellectual Property Institute for Safe Medication Practices International Union of Pure and Applied Chemistry Japanese Accepted Name Look-Alike and Sound-Alike Movement Advancement Project Medically Unexplained Chronic Multi-System Diseases Medically Unexplained Disease/Disorder Medically Unexplained Symptoms National Content Survey National Academies of Sciences, Engineering and Medicine National Center for Transgender Equality New Drug Application Name Review Group Organization of American States Office of Management and Budget Office for National Statistics Office of Prescription Drug Promotion Over-The-Counter Pan American Institute of Geography and History Post-Acute Sequelae of SARS CoV-2 infection Post-Covid Condition

xii

Abbreviations

PCGN PDNs PDO PFDA PGI PMS PNPD POCA PTSD RAETT RC RU SCOTUS SOC-8 SOR SSA SSACLFNOC SSIDC SWAN TFEU TGD TRIPS TSG TSS TTAB UDNI UK UN UNCSGN UND UNGEGN UNSC USA USCA USAN USANC USBGN USPTO VA WARF WHO WIPO

Permanent Committee on Geographical Names Prescription Drug Names Protected Designation of Origin Pure Food and Drugs Act Protected Geographical Indication Premenstrual Syndrome Proprietary Names for Prescription Drugs Phonetic and Orthographic Computer Analysis Post-Traumatic Stress Disorder Race And Ethnic Targeted Test Restrictive Covenants Roussel Uclaf Supreme Court Of The United States Standards of Care, Version 8 Some Other Race Social Security Administration Symptoms, Signs, Abnormal Clinical and Laboratory Find­ ings Not Otherwise Classified Signs, Symptoms, and Ill-Defined Conditions Symptoms Without A Name Treaty on the Functioning of the European Union Transgender and Gender Diverse Trade-Related Aspects of Intellectual Property Rights Traditional Specialities Guaranteed Toxic Shock Syndrome Trademark Trial and Appeal Board International Undiagnosed Disease Network United Kingdom United Nations United Nations Conferences for Standardization of Geo­ graphical Names Unnamed Disease United Nations Group of Experts on Geographical Names UN Security Council United States of America United States Cattlemen’s Association United States Adopted Name United States Adopted Names Council United States Board on Geographic Names United States Patent and Trademark Office Veterans Administration Wisconsin Alumni Research Foundation World Health Organization World Intellectual Property Organization

Abbreviations WNF WPATH WTO

West Nile Fever World Professional Association of Transgender Health World Trade Organization

xiii

Contributors

Michael Adams is Provost Professor of English Literature (Indiana University, USA). His books include In Praise of Profanity (OUP, 2016) and How English Works (Pearson, 2012). A legal onomastics expert, he is American Dialect Society President, Past President of the Dictionary Society of North America, and former American Speech Editor. Nestor M. Davidson is the Albert A. Walsh Professor of Real Estate, Land Use and Property Law at Fordham Law School. Professor Davidson is an expert in property, urban law, and affordable housing law and policy, and serves as the faculty director of the law school’s Urban Law Center. Jennifer Davis is a lawyer and academic. An Emeritus Fellow of Wolfson College, Cambridge, she’s a member of the Centre for Information Law and Intellectual Property (University of Cambridge, UK). Her research includes linguistics, trademarks, and unfair competition. With Alan Durant, she’s published broadly on intellectual property and linguistics. Alan Durant is Professor of Communication at Middlesex University School of Law (UK). His books include Meaning and Power in the Language of Law (CUP, 2017); Language and Law (Routledge, 2016); and Meaning in the Media (CUP, 2010). With Jennifer Davis, he’s published extensively on copyright and trademarks. David Fagundes is the Baker Botts LLP Professor of Law and Research Dean at the University of Houston Law Center (USA). He teaches and writes about property, copyright, real estate, and wills and trusts. His recent work has focussed on the Second Amendment status of cities, and voluntary copyright abandonment. Pascaline Faure is a professor at the Sorbonne University’s Medical School (France). Her linguistic research examines medical terminology, medical neologisms, euphemisms, acronyms, and metaphors. Her publications on prescription drug naming have been featured in the popular media (e.g., The Times, January 2018).

List of contributors

xv

Laura A. Heymann is the James G. Cutler Professor of Law at William & Mary Law School (USA). She has published extensively on naming and trademark law, reputation, and fair use in copyright law. She served as the Book Review Editor on the California Law Review and was Vice Dean of the Law School from 2013 to 2017. Stephen B. Heard is a Biology Professor at the University of New Brunswick (Canada). He is an evolutionary ecologist specializing in interactions between plants and insects. His books include Charles Darwin’s Barnacle and David Bowie’s Spider (Yale UP, 2020) and The Scientist’s Guide to Writing (Princeton UP; 2nd edition, 2022). Sharon N. Obasi is Assistant Professor of Family Studies at the University of Nebraska at Kearney (USA). Her research interests include parental investment, namesaking and familial relationships, global perspectives on evidence-based family policy, and the scholarship of teaching and learning. Roger Payne was Executive Secretary of the US Board on Geographic Names (1993–2006). A former American Name Society President, with degrees in Geography, Linguistics, and History, he was Chief Adminis­ trator of the Geographic Names Office and Manager of the Geographic Names Information System, the nation’s automated geographic name repository (1979–2006). Caoimhín MacMaoláin BCL, LLM, MA, PhD, is Associate Professor at Trinity College’s Dublin School of Law (Ireland). A former Jean Monnet Chair in EU Law (Exeter University), he is Global Relations Director and teaches EU Law, International Trade Law, and Food Law. He has pub­ lished extensively on food and beverage naming regulations. I. M. Nick holds a BA (Germanics); BSc (Clinical/Abnormal Psychology); MA (German Linguistics); MSc (Forensic and Investigative Psychology); PhD and the German “Habilitation” (English Linguistics). Her onomastic research focusses on anthroponymy, identity, and language policy. A past President of the American Name Society (ANS), she is Editor-in-Chief of Names: A Journal of Onomastics.

1

Names, Naming, Identity and the Law A Basic Introduction I. M. Nick

What is Onomastics? Explained briefly, onomastics is the scholarly study of names and naming. Hidden below this satisfyingly straightforward definition is a series of vexing questions that have tormented and delighted intellectuals for millennia. What is a name? What is the difference between a name and a word? What is a word? Generations of some of the world’s best philosophers and linguists have devo­ ted countless hours of their lives (and those of their students) in the attempt to answer to these basic questions. Some of the most notable contenders include Gottlob Frege, Saul Kripke, John Stuart Mill, Willard Quine, Bertrand Russell, Gilbert Ryle, John Searle, P. F. Strawson, and Ludwig Wittgenstein.1 One of the major reasons why it has proven so difficult to find definitive answers to these questions is the fact that there is so much variation in the languages of the world in the past, present, and in the conceivable future (Willy Van Langen­ donck and Mark Van de Velde 2016). Adding to this complexity is the diversity of different name types. “Named entities”, as Hough (2016) reminds us, “are not limited to people and places” (1). They include all things—be they real or imagined—between heaven and earth, and beyond. Ideally, the answer to these questions would not only apply to personal names in one or two of the world’s languages, but all types of names across language systems, be they written, spoken, or signed. Making matters worse is the seemingly infinite degree of creativity displayed by language-users who regularly and irreverently break the prescribed rules and established norms, thereby destabilizing the ever-so-carefully erected grammatical frameworks of language philosophers, linguists, and grade schoolteachers alike. There is, of course, a certain degree of irony in the fact that an entity which is so difficult to pin down is one which is so common. Names are everywhere. And, to the best of our knowledge, all human languages appear to have them. As Kaplan and Bernays (1997) explain: Names are what anthropologists call cultural universals. Apparently there has never been a society able to get along without them. They are among the first things we ask or learn when we meet someone new […] DOI: 10.4324/9781003431510-1

2

I. M. Nick Names shape the language of the daily drama of gesture, avowal, and inference that is part of our social life. (16)

In recent years, we have also discovered that names may not even be limited to human language but are also apparently used in communication used by other highly social animals as well. For those of us who share a home with a non-human family member, it probably comes as no surprise that many animals can learn and respond to the human names we give them. However, what many might not know is that there is considerable scientific evidence that certain species of non-human animals also develop and use names for themselves and others within their species (i.e., conspecifics). Called “signature contact calls”, these acoustic labels are given and used by conspecifics with affiliative bonds, such as parents, siblings, offspring, and mates, to build group cohesion, coordinate movement, facilitate indivi­ dual recognition, and advertise identity. So far, such vocal labeling a.k.a. “naming” has been documented in dolphins, parrots, corvids (the family of birds that includes crows, jays, magpies, and ravens) as well as primates (Kingand Janik. 2013; Kondo and Watanabe 2009; Berg et al. 2011; Wanker, Sugama, and Prinage 2005; Wanker et al. 1998). Such research adds com­ pelling evidence to the assertion that names are a fundamental form of per­ ceiving, communicating, and being. As Algeo and Algeo (2000) write: “To name something, as far as human attention goes, is to make it” (265). And so, as the next generation of philosophers continues to debate the best defi­ nition of a name, the rest of the world, for better or worse, appears to be rather content with relying on their innate understanding. Generally speaking, when laypeople use the term “name” what they mean is what linguists and philosophers commonly refer to as a “proper name” (Bright 2003). Proper names are special linguistic elements which refer to a specific entity such as persons, places, animal(s), thing(s), ideas, etc. (Burge 1973). They can be used to refer to a single, unique individual or a set of name-bearers that number into the millions (e.g., Chloe Ardelia Wofford, Toni Morrison, Ohioan, African American). Proper names may take several forms. They may be composed of single-word units or complex multi-word expressions (Motschenbacher 2020) (e.g., Obama, Barack Obama, Barack Obama Boulevard, President Barack H. Obama Highway). They are, as Bach 2015 describes, “referring terms par excellence” (778). Their special status may be marked by special grammatical rules or orthographical norms such as word-initial capitalization (Hanks 2013).2 As a group, proper names are the rockstars of the grammatical world, stubbornly refusing to behave like other words (Klassen 2022). And in bla­ tant contrast to the other parts of speech that are remarkably closed to newcomers, proper names are a decidedly open bunch, eagerly welcoming novel creations into their own class or insisting that the other word classes make room for their latest spawn. While other word classes are stubbornly

Names, Naming, Identity and the Law

3

resistant to change (e.g., pronouns, articles, and prepositions), proper names are wondrously versatile and productive, using a multitude of methods to pro­ duce new labels. New names may be formed via spelling variation; combining letters, numbers, and/or symbols; lobbing off parts of pre-existing words and then combining the pieces with morpohological elements; digging through the burial ground of a language to breathe new life and meaning into words long forgotten; pilfering, or “borrowing” as we linguists prefer to call it, although admittedly the words taken from one language are rarely “given back”; and magically conjuring up completely new, never-before-seen forms from the ether of human imagination. It is also not uncommon to find that many of these formation methods are combined to create novel proper names. Given all that innovation, it is understandable why names have intrigued thinkers from a variety of different academic disciplines. However, the group of scholars who dedicate their professional lives to investigating names and naming are called “onomasticians”. To explain precisely what onomasticians do, it may be useful to draw an analogy with a field that readers may be more familiar with: biology. Biology is devoted to the study of life-forms. It is traditionally divided up into two basic areas: the study of plant life (botany) and the study of animal life (zoology). Considering how many fauna and flora are (still) on the planet, that is no small task. According to modern estimates, scientists have successfully identified, documented, and counted some 374,000 different plant species (Christenhusz and Byng 2016) and around seven million animal species, not including viruses and bacteria (Ritchie 2022). No matter how fascinating all of those lifeforms may be, it would obviously be impossible for any one person to gain an expert level of knowledge about each and every one of these species. For that reason, most focus their attention on a particular species. Some bota­ nists, for example, specialize in flowering plants, while others prefer to devote their attention to mosses or algae. In zoology, the story is the same. While some spend their lives chasing birds (ornithologists) or mammals (mammologists), their colleagues prefer to go diving after fish (ichthyologists). Of course, this is not where the tale of scientific specialization ends. Just like in botany, each zoological division has its own set of sub-divisions. In insec­ tology, there are entomologists who specialize in melittology (bees), myrme­ cology (ants), dipterology (flies), and coleopterology (beetles), just to name a few. And within each of those sub-divisions, there are sub-sub-divisions. There are, for example, ca. 17,500 different species of butterfly and an astounding 160,000 species of moth for today’s aspiring lepidopterologist to choose from (Smithsonian Institute 1996/n.d.). Once a biologist has settled on a particular species, they can look forward to a lifetime of observing, cataloging, collecting, and documenting the unique characteristics of their chosen one. And some­ times, if they are very lucky, they will have the honor of becoming the first to document the discovery of an entirely new species. In many ways, the professional life of the onomastician is much the same. Historically, the field is sub-divided into two basic areas. One involves the

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I. M. Nick

study of placenames (toponomastics). Within this branch, there are many dif­ ferent name types toponymists may explore. Examples include “choronyms”— proper names for large geographical or administrative units of land (e.g., Bremen, Greater London, Hokkaido, Toscana, Yukon); “hodonyms” —proper names for routes such as avenues, highways, roads, and streets (e. g., Abbey Road, Broadway, Champs-Élysées, Hollywood Boulevard, Khao San Road, La Rambla, Via Dolorosa); “hydronyms”—proper names for bodies of water such as bays, lakes, oceans, ponds, seas, and swamps (e.g., Arctic Ocean, Caspian Sea, The Everglades, Lake Tanganyika, Okefenokee); “oronyms”— proper names for elevated land formations such as hills, highlands, mountains, mountain ranges, rocks (e.g., Denali, Chocolate Hills, Iztaccihuatl, Mount Rainier, The Andes, Uluru). The second major branch of onomastics is called anthroponomastics and investigates names for people. Anthroponymists may concentrate, for example, on the proper names given to groupings of people such as “ethnonyms” which designate a cast, clan, folk, ethnicity, nation, or tribe (e.g., Asian American, Black Cherokee, Aymara, Celtic, Masai, Hindustani, Ukrainian). Alternatively, anthroponymists may focus on name types are given to individuals such as first names, middle names, surnames, bynames, nicknames, pseudonyms, aliases, and even secret names (cryptonyms). While some specialists in anthroponymy focus on only one of these name types, others prefer to examine the network of names that a single individual may carry. To demonstrate how complex such onomastic systems can be, consider the following example taken from the highly specialized area of “forensic onomastics”. On November 8, 1945, in New York, a baby boy was given the same first, middle, and surname as his father: James Joseph DeAngelo. However, to distinguish between the two, the baby was also given the kinship term “junior”. This name stood even after the boy’s mother, Kathleen DeAngelo nèe DeGroat, remarried and took on a new marital surname, Banko; the son retained his original legal name. As a young man, DeAngelo seemed to follow in his birth father’s footsteps. He married, settled down, started a family of his own, and even joined the police force in California. On the surface, it seemed that Officer DeAngelo was living the American Dream, but that was only on the surface. In reality, his life was the stuff of nightmares. When Officer DeAngelo was not on duty or at home with his family, he was roaming the neighborhoods of the Los Angeles Bay Area in search of a victim to sexually brutalize and sometimes murder. Able to access the latest devel­ opments of the police task force assembled to catch this repeat rapist-mur­ derer, he successfully evaded law enforcement efforts to stop him. Soon, the local media caught wind that a serial killer was on the loose. Night after night, the news carried stories about the murderer’s crimes and speculated about where he might strike next. Using a time-old onomastic formation pattern, the media developed a series of nicknames for the serial offender that were based on his preferred modus operandi (i.e., his geographical hunting grounds, his crime type, and

Names, Naming, Identity and the Law

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his signature method of attack). These nicknames included The Creek Bed Killer, The Diamond Knot Killer, The East Area Rapist, The East Side Rapist, The Golden State Killer, and The Night Stalker. In DeAngelo’s case, these criminal monikers were applied to the offender by others (i.e., exonyms); in other cases, it is the lawbreaker who selects the pseudonym (s). For example, in the 1970s New York crime spree which resulted in the murder of six people and the attempted murder of 11, the offender left a series of well-documented letters to the NYPD. In them, he referred to himself with various names, including Mr. Monster and Son of Sam (Waxman 2017). Thanks in all likelihood to DeAngelo’s experience in law enforcement, he managed to evade the police for many decades. In the Autumn of 2018, however, he was finally placed under arrest. One of the keys to cracking the case came from a professional genealogist who used DNA crime scene evidence to identify the killer’s family tree. The task force then methodically worked through the name list of genetic possibi­ lities until one name was left unaccounted for: James Joseph DeAngelo, Jr, alias The Golden State Killer. 3

Onomastic Methods and Approaches Alongside anthroponyms and toponyms, there are many, many other kinds of names that are examined in onomastics. The International Council of Onomas­ tic Sciences, or ICOS, has identified hundreds of name types. There are literary names, animal names, plant names, product names, names of cars, names of religions, gods and goddesses, devils and saints; names of foods and drinks; superheroes and heroines; names of planets, stars, asteroids, and galaxies; names of ships, planes, tanks, and guns; fairies, trolls, witches, warlocks, goblins, vampires, and ghouls; countries, nations, and townships; cosmetics, clothes, perfumes, and buildings; tribes and clans; crimes and criminals; dances, music, churches, and synagogues; the names of the dead, the living, and the hereafter, etc.. Whichever onomastic area or sub-discipline they chose, onomasticians, much like zoologists or botanists, often spend their careers identifying, collect­ ing, analyzing, and documenting their discoveries (Nicolaisen 1979). Through objective, evidence-based fieldwork, onomasticians not only increase our overall understanding of the nature and function of names. They also help to record and protect the incredible global diversity of names both past and present. With these overarching goals in mind, much onomastic research has traditionally focused on attempting to identify the origin and trace the history of names over time. Through such etymological analysis, invaluable information has been gathered about how and in what ways languages, and by extension peoples, are historically intertwined and related. This research has helped to uncover a great deal of information about the lives of these early peoples. Within archaeological examinations, for example, onomastic analyses have offered scientists “windows into how the landscape was visua­ lized, by whom and from where, what mattered to communities, how they

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I. M. Nick

defined themselves or were defined by others, how they felt about their home, and a thousand other intangibles” (Jones 2016: 473). Importantly, such insights have been won by examining onomastic variations not only over time, but also over geolinguistic space, for names, like varieties of birds or species of trees, vary according to their surrounding environments. To collect onomastic data for synchronic and/other diachronic analyses, onomasticians have historically relied upon the research methodology common in dialectology—retrieving data through multiple sources (e.g., original documents stored in research libraries and archives; interview material gathered from language users; survey data obtained from onomastic surveys, etc.). Once collected, onomasticians may employ qualitative, quantitative, or mixed-method analyses, depending on the research questions posed as well as the nature and size of the data assembled. In recent years, onomastics has experienced a palpable movement towards com­ putational methods, including the incorporation of computer-assisted data analysis (CADA). The progressive adoption of CADA tools has made it possi­ ble to examine larger data sets more quickly and reliably. This increase in data volume can help to increase the likelihood of detecting subtle yet significant patterns of name use that might otherwise have remained overlooked. Over time, the continued commitment to embracing new, more powerful, and rigorous research methods has not only heightened the reliability, validity, and generalizability of onomastic findings; it has also facilitated the discipline’s growth as an independent field of research in its own right. As W. H. F. Nicolaisen so eloquently stated, through its ever-increasing sophistica­ tion, “onomastics, though not without boundaries, has by no means exhaus­ ted its full potentials” (1984: 22). Although made nearly four decades ago, Nicolaisen’s statement is as true today as it was back then. By regularly rais­ ing the bar of its intradisciplinary standards, onomastics has helped ensure that the study of names and naming has remained a relevant and valued source of data about our world. Accordingly, the investigation of names and naming continues to be a stable and integral component of research conducted across many different academic disciplines. From philosophy, geography, car­ tography, linguistics, literature, anthropology, history, politics, archaeology, demography, and genetics, onomastics is at its very core a transdisciplinary, interdisciplinary field (Clark 2014; Matteos 2014; Redmond, King, and Hey 2011; vom Bruck and Bodenhorn 2006). The present multi-authored volume is specifically devoted to exploring the interaction between onomastics and law.

Language and Law; Naming and Names Alongside their referential function, “proper names” (henceforth, “names”) provide key information about the named entity, such as how it may be used, what it is composed of, where it originated, whether it is dangerous or safe, etc. In this way, the names chosen for an entity have a direct impact upon the way it will be perceived, handled, accepted, or rejected. Names also help situate the labeled entity within ontological systems and thereby

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assign them, be it directly or indirectly, relationships with other named entities, with equal, greater, or lesser degrees of specification and associa­ tion. As Nyström (2016) describes: Human beings mentally divide objects and other phenomena in our worlds into categories of some kind (such as animals, horses, people, fruit, cities, cars, etc.) […] we use words to gather and group references that belong to such common categories […] such categorization also forms an underlying structure when names and name-giving are concerned. (47) As a result of the interdependency of the named conceptual categories in our cognitive schemata or frames, changes in one segment of this dynamic system can (and often do) have an effect on others. This ripple-effect may be one of the reasons why there can be such resistance to altering established names, as one name change seldom comes alone. An excellent modern example of this ono­ mastic domino effect can be seen in the names used for athletic teams in the USA. Over the years, thanks to sustained civil rights protests, the pejorative names of many sports teams have changed (e.g., Eastern Washington Uni­ versity Savages → Eagles (1973); Dickinson State Savages → Blue Hawks (1974); Buffalo Braves → Clippers (1978); St John’s Redmen → St John’s Red Storm (1994); Oklahoma University Chiefs → Stars (1999); Seattle University Chieftains → Seattle University Redhawks (2000); Midwestern State University Indians → Mustangs (2006)).4 With each successive name change, the pressure placed on the remaining teams has grown. For many years, though, there was one team that seemed completely unwilling to even consider the idea of a name change. Ironically, that team happened to be located in the nation’s capital. In 2013, in an interview with USA Today, when asked once again whether he would ever consider changing the team’s legal name that many felt was racially offensive, the then owner Dan Synder infamously replied: “We will never change the name of the team […] It’s that simple. NEVER—you can use caps” (Brady 2013). “Never” came less than a decade later, on May 25, 2020. On that date, people around the world watched in horror as a handcuffed 46-year-old George Floyd died painfully while Officer Derek Chauvin bared down onto Mr. Floyd’s neck, cutting off his breathing and causing fatal cardiopulmonary arrest. Amidst unabated international outrage and financial pressure from sponsors threatening to end their contractual agreements, the Washington DC football franchise announced that it would finally be changing its name. In 2022, after a brief two-season stint as the Washington Football Team, the franchise was officially re-branded as the Washington Commanders. At around the same time, Ohio’s iconic baseball team made a similar announcement. At the end of the 2021 season, the team would no longer be called the Cleveland Indians. The announcement came after an intensive process in which the franchise commissioned a survey of ca. 40,000 fans, conducted in-depth interviews with community leaders, and reviewed more

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than a thousand name alternatives. These included Cleveland Crows—a bird species that is abundant in Ohio;5 Cleveland Spiders—a previous name for a 19th century area team; the eponym, the Cleveland Naps—inspired by the name of a former player, Nap Lajoie; Cleveland Fellers—another eponym, this time inspired by former player, Bob Feller; Cleveland Rockers; Cleveland Cuyaho­ gas—borrowed from the name of the local Cuyahoga River (a hydronym); Cleveland Great Lakes—another hydronym that presumably needs no expla­ nation; Cleveland Blues—an earlier name for a local team which was also known as the Cleveland Spiders; Cleveland Blue Sox—inspired by the Cleve­ land Blues and an analogy to the names of baseball rivals, the White Sox of Chicago and the Red Sox of Boston (Perry 2020). In the end, a completely dif­ ferent name emerged victorious: the Cleveland Guardians. Despite having done its best to include fans in the deliberation process, the reactions were mixed, as shown in the commentary below (Schulz 2021): S. Dantio: “They could’ve called it whatever. I wasn’t going to like it because I am a die-hard season ticket holder for 30 years—it’s the Indians and it always will be.” (para. 2) M. Alexander: “The change is long overdue, but people are obviously emotional about it.” (para. 6) A.Harris: “ […] people love the Indians, they came for the Cleveland Indians, they love it, it’s Tribe Town. I just think its (sic) just wrong they changed it.” (para. 8) N. Kadylak: “As a lifelong fan, I support Cleveland baseball. Thankfully the absurdly racist caricature is gone. The name change is long overdue.” (para. 4) Despite their range of reactions, the persons above shared at least one major thing in common—aside that is from being diehard Cleveland fans. Their emotional tie to the named entity, in this case, their baseball team, had a direct bearing on their reaction to its change in proper name. Inter­ estingly, despite being adamant that the franchise name change was crucial, Cleveland owner, Paul Dolan, was by no means immune to these emotions. As he admitted in a 2021 interview with ESPN: I’m 63 years old, and they’ve been the Indians since I was aware of them probably since I was 4 or 5 years old […] for people my age and older, most our life is going to be living as an Indian and not as a Guardian. (para. 9/10)

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Names are not meaningless labels that simply serve as linguistic pointers. They are imbued with memories, values, expectations, and emotions. One and the same name can carry positive associations for one language user and decidedly negative connotations for another. In addition to their surface referential function, names have underlying categorical, associative, and emotive meanings. And this tripartite of meanings can affect the ways in which both the name-bearer and the name-user are perceived. This is a crucial point where names, naming, identity, and the law are concerned. In the end, it was not legal sanctions which yielded successive changes in the official names used by US athletic teams. Thanks to the constitutionally guaranteed freedom of speech, lawmakers have historically had their hands tied when it comes to regulating potentially offensive names and naming by corporations. Even when members of Congress and the first African American President of the United States, Barack Obama, condemned the use of racial slurs in the official names of athletic teams, the owners were not legally required to institute any changes to their naming policies. What ultimately led to the sweeping name changes detailed above were changes in US society and millions of consumers who threatened to let their wallets do the talking if corporate America did not take heed. And take heed, they did. In July 2020, executives at “Nike, FedEx, and PepsiCo received letters signed by 87 investment firms and shareholders worth a combined $620 billion” demanding that they cut contractual ties with the Washington football team if they continued to refuse to change their official name (Keim 2020: para. 2). That financial threat, combined with the fact that Washington DC officials vowed not to renew the franchise’s contract with the city without changing their name, finally brought the long-fought-for defeat of the hated R-word.* Once this juggernaut of offensive athletic names finally fell, there were many who hoped it would be just a matter of time before more followed. Instead, in many communities, we have witnessed a stinging backlash where names that potentially disparage others have increased in frequency. Much to the consternation of “others”, each community of language users has its own set of traditions, customs, and rituals for generating, bestowing, changing, removing, and withholding names. In some communities, these normative rules have been formally codified and regulated. The decision-makers who are charged with the responsibility of imposing these onomastic regulations may operate at local, municipal, state/provincial, regional, national, and even international levels of governance. By regulating the selection and assignment of officially sanctioned names, such governing bodies have a direct impact upon the allocation of rights, privileges, and entitlements; the determination of legal responsibilities and restrictions; and the placement of penalties, reparations, and indemnities for violations upon particular entities. The value of these controls becomes readily apparent when they are lax, absent, contradictory, contested, or incomplete. Consider for example the recent proliferation of exclusively plant-based or wholly synthetic “labgrown” food products that are marketed as vegetarian or vegan alternatives

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to traditional animal products. Many of these foods carry names suggesting an association with meat in hopes of enticing both traditional meat-eaters and vegetarians to try their cuisine. In 2018, the US Cattlemen’s Association (USCA) formally petitioned the US Department of Agriculture’s Food Safety and Inspection Service (FSIS) to establish formal labelling requirements that would prohibit the use of the terms “beef” and “meat” in the names of products “not derived directly from animals raised and slaughtered” (FSIS 2018: 1). One of the main arguments used in the petition was the US Federal Trade Commission’s mandate against “unfair or deceptive acts, including false and misleading advertisement of foods, drugs, devices, and cosmetics” (FSIS 2018: 7). Importantly, the fight is not only over the right to use the terms “beef” and “meat” in product naming but extends to other terms which have historically been used to name animal-based meat products (e.g., chopped beef, ground beef, hamburger, hot dog, jerky, patty, ribs, roast, sausage, steak).6 As Cody Burkham, Executive Vice President of the Arkan­ sas Cattlemen’s Association explained: “You can’t take a Buick, take the hood ornament off and slap a Porsche hood ornament on, and try to sell that Buick as a Porsche. It doesn’t work like that” (Selyukh 2019: para. 10). Following this argument, the ornaments in question are the traditional names associated with animal-based products; and the primary victims of the onomastic bait-and-switch are the consumers, followed closely by the traditional meat-products industry. Companies that have specialized in the production of plant-based and lab-grown traditional meat alternatives have pushed back against such petitions. They argue that such prohibitions effectively violate their First Amendment Right to free speech. As the US federal government continues to deliberate, many state legis­ latures have already taken action. For example, in 2019, the state of Arkansas passed what is commonly referred to as the “Truth in Labeling Law” which specifically prohibits the use of the above-mentioned terms from product labels which do not contain meat, legally defined in Arkansas as “a portion of livestock, poultry, or cervid carcass that is edible by humans” and does not include a “synthetic product derived from a plant, insect, or other source” or a product “grown in a laboratory from animal cells”. Arkansas’s law went into effect on July 24, 2019. Two days earlier, an official lawsuit was filed by a conglomerate of animal rights and civil rights titans such as the Animal Defense Fund, the American Civil Liberties Union, and one of the nation’s leading corporate pioneers in vegetarian cuisine, Tofurky. The company began as a small grassroots start-up run by hippie naturalist, Seth Tibbot. As one might glean from the business name, the company’s claim to fame is a turkey meat substitute made of tofu [tofu + turkey → tofurky] (tofurky.com). According to Tofurky President and CEO, James Athos, the premise of Arkansas’s legislation is fatally flawed. According to Athos, the reason why a growing number of consumers are electing to purchase plant-based meat alternatives is not because they have been confused by the advertising lan­ guage used by the producers. These plant-based meat alternatives are

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intentionally selected by buyers because they reflect modern consumers’ life­ style choices regarding their personal nutrition and environmental concerns. In Athos’s opinion, the impetus of the Arkansas law “was never about helping consumers, it was a naked attempt by the state legislature to interfere in the marketplace and limit competition against animal agriculture interests” (Businesswire 2022: para. 6). As of the writing of this chapter, the legal battle continues, with neither side showing signs of acquiescing (Caracciolo 2022). However, as the envir­ onmental and financial costs for traditionally produced animal-based foods increase, and previous consumer reticence about trying climate-friendly, non-animal-based products decreases, the fight over product and brand names may well change. Some plant-based and lab-grown meat-alternative companies may decide, for example, that it is counter-productive to have their brand and company identities associated with the traditional meat production that involves industrial-scale farming and animal slaughter.7 Time will tell. In the meantime, the bitter battle over product and brand naming continues. It is undeniable that one of the major drivers of this epic war is profit. There are literally billions of dollars at stake. However, money alone is not the only reason for this dispute. Along with questions of market shares are deeper controversies over consumer and producer identities. As is so often the case, legal disputes over names and naming have just as much (if not even more) to do with the namers as they do with the entities named. Do you prefer Aunt Jemima or Pearl Milling Company; Mount McKinley or Denali; Ayers Rock or Uluru; Cleveland Indians or Cleveland Guardians; Dixie State University or Utah Tech University; Persian or Ira­ nian; Kentucky Fried Chicken or KFC; Robert E. Lee High or John R. Lewis High;8 Monkeypox or Mpox; Idiot Savant or Savant Syndrome; Weight Watchers or WW; Allahabad or Prayagraj;9 The Ukraine or Ukraine? The number and variety of names that have found themselves at the center of language policy disputes point to the true scope of the issue. Scholars have tended to focus on the names of brands, products, domains, businesses, and organizations when discussing the intersection between the law and ono­ mastics. However, in point of fact, the legislation and policies enacted to regulate the official use of names affects a wide variety of name types. The acrimony and longevity of disputes fought over official names are indicative of their power. Our namescapes represent emotionally laden cog­ nitive maps of the world in which we live and the ways in which we see ourselves in that world. Altering the names within that space can threaten our sense of security by creating a disjoint between the memories we have col­ lected and the associations we have formed with the named entity. By the same token, rigid adherence to names that violate, deny, or otherwise harm our individual and collective identities can also threaten our sense of security by maintaining an unwanted connection to painful memories and associations with the named entity. For one group, a legal change in name is threatening; for the other, it is liberating. The nature, strength, and duration of these

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reactions are not so much due to the named entity itself, but the affective, associative, and categorical meanings we ascribe to it. Moreover, the fact that identities can be stolen, traded, suspended, and even erased through names “reveals the profound political power located in the capacity to name; it illustrates the property-like potential in names to transact social value; and it brings into view the powerful connection between name and self-identity” (vom Bruck and Bodenhorn 2006: 2). This self-identity may be constructed singularly by one individual or collectively by a group. As Wilson asserts, names not only identify individuals and col­ lectives by making reference to them, they “are often the focus of a person’s sense of identity” […] a name “defines an individual’s position in his [her/ their] family and in society at large; it defines his [her/their] social person­ ality. In other words, it classifies a person” (1998: xii). As discussed above, governmental bodies, large and small, can have a direct effect on the identity construction of individuals and groups through the impo­ sition of name laws. However, the same is true in reverse: the conventions of people themselves can serve as a powerful catalyst for enacting or removing official name policies and practices. Thus, the power to affect laws and policies that govern names and naming is often bidirectionally negotiated, both from the top downwards and the bottom upwards. In many cases, the resulting process of bidirectional negotiation is mediated by ancillary bodies of experts who have specialist training in the entity to be named, renamed, or unnamed. Although their opinions and recommendations are taken under advisement, it is rare that these experts are granted the full regulatory powers of government decisionmakers. At times, these three sets of name-users will come to a consensus over the names to be used in particular contexts. At other times, the three will employ entirely distinct sets of nomenclature to suit their separate needs and purposes. And still other instances, for the sake of transparent communication, they will elect to use a combination of names in an attempt to meet the needs and respect the identity interests of the various stakeholders involved. As Ainiala and Östman (2017) summarize: names are communicative tools that language-users wield to “accomplish a variety of culturally, socially, and inter­ actionally relevant tasks”. The purpose of this book is to provide readers with new insights into the ways in which laws and policies devised to regulate the selection, meaning, and application of different name types are used as policymaking tools to mediate one of the most fundamental interactional tasks within society: the construction of individual and group identity.

About This Book This collection has four main objectives. The first is to heighten familiarity with the variety of name types and naming practices used in the con­ temporary legal systems of the United Kingdom and the United States. However, as a point of contrast, the chapters also make regular reference to the policies and practices of other nations beyond the UK and the USA. The

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resulting international survey is crucial for achieving the second objective of this volume: increasing readers’ awareness of the ways in which identities are not only referenced, but also mediated by legally regulated proper names and naming regulations. With this expanded awareness, this work thirdly seeks to call attention to the real-world impact of onomastic policies and practices on people’s socio-economic access, privilege, and power. In doing so, the fourth and final objective may be achieved: namely, to encourage more sensitivity around the ways in which names and naming can be constructively used to empower historically disadvantaged groups and individuals.

Chapter Organization The book begins with an examination of one of the most familiar types of proper name: last names. Written by Eleanor Peters, Chapter 2 explores how British and US American laws regarding the adoption of surnames from patrilineal familial lines (i.e. patronyms) differentially affect people’s abilities to identify themselves as both individuals and as members of familial units. Taking up this issue of gender-bias in onomastic laws, Chapter 3 by Laura A. Heymann explores how rigidity in the design and nomenclature used in stan­ dardized governmental forms curtails people’s ability to accurately express their gender and cultural identity, thereby impinging upon their civil liberties. In Chapter 4, I. M. Nick and Sharon N. Obasi examine the ways that adherence to gender binaries in US American and Canadian laws and policies restricts the ability of transgender and gender-diverse adults to accurately and legally declare their preferred personal names and gender identity on official documentation. In Chapter 5, I. M. Nick provides a detailed account of the highly politicized administrative challenges involved in devising a standardized set of racial ethnonyms to more correctly and fairly enumerate the nation’s increasingly diverse population in the US Census. The focus of the book then shifts away from anthroponymy and offers exam­ inations of other name types, starting with toponymy. Chapter 6 is contributed by Roger Payne and describes the establishment of the US Board of Geographic Names and the development of its policies to help ensure geographically accurate toponyms that are sensitive to sociocultural identity. The intimate connection between placenames and toponymy is taken up again in Chapter 7 by Nestor M. Davidson and David Fagundes who examine how conflicts over ethnic identity and toponymic policy play out in US neighborhoods. Moving from micro- to macrotoponymy, Chapter 8 by Caoimhín Macmaoláin presents an in-depth exploration of the international laws that regulate geographic indications and traditional food names. Chapter 9 by Pascaline Faure maintains the international focus and inves­ tigates how the pharmaceutical industry builds brand identities while navigating governmental regulations on the naming of prescription drugs. In Chapter 10, I. M. Nick continues this exploration of naming in the health sciences and provides a detailed description of the governmental policies, historical practices, and identity repercussions of naming unnamed diseases. The impact of scientific names is taken

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up again in Chapter 11 by Stephen B. Heard who focuses on how the codes and practices for naming of biological species reflect cultural identities. The book then shifts once again, moving away from the biological sciences to the interaction between identity and trademark laws. More specifically, Chapter 12 by Michael Adams explores how recent US governmental legislation to protect commercial interests in trademark law has had legal and social repercussions in corporate naming, often at the expense of cultural group identity interests and collective face. Then, in Chapter 13, the final contribution to this collection, Alan Durant and Jennifer Davis investigate UK company, product, and service names with regard to trademarks and brands. Their legal-linguistic examination brings us full circle by addressing that perennial question that vexes and fascinates in equal measure: “What’s in a name?”

Notes * While this term is not specified in full here, an asterisk (*) is used throughout this book to denote the use of potentially offensive terms. 1 For more recent work on the theory of names, see Handschuh 2022; Héois 2020; Schlücker and Ackermann 2017; Hanks 2013; Cumming 2008; Coates 2006/2009; Anderson 2007; Zelinsky 2002; Alford 1988; Allerton 1987; Kripke 1980; Long 1969; Mill [1872]1949. 2 In this work, as per the typographical convention of the American Name Society, proper names that are presented for examination are marked using italics. Classificatory constructs are placed in caps. 3 For more on the Golden State Killer, see McNamara 2018. 4 For more, see Fenelon 2016; King 2016; Nuessel 1994. 5 According to the Ralph Perkins Wildlife Center and Woods Garden, the American crow is found throughout Ohio. Mansfield Ohio even holds an annual “Crow Festival” to celebrate the migration of the crow. http://perkins.cmnh.org/perkinswildlife-home/beech-maple-forest-community/crow. 6 For more on the issue of linguistics and trademarks, see Butters 2021; Kaplan 2019; Butters 2008; Ainsworth 2006; Butters and Westerhaus 2004; Shuy 2002. 7 An ocean away, lawmakers of the European Parliament have found themselves in the middle of similar battles over the use of nomenclature traditionally used to label meat products, for products and companies specializing in vegan and vegetarian food stuffs. In 2019, the European Agricultural Committee approved legislation which stipulated that all traditional meat-related terms and names “shall be reserved exclusively for edible parts of the animals” (Fortuna 2020: para. 3). However, in 2020, the EU Parliament rejected these prohibitions against the use of meat denominations for plant-based foods. 8 See the official announcement by Fairfax County School Board in Fairfax, Virginia: https://www.fcps.edu/about-fcps/departments-and-offices/deputy-superintendentsoffice/region-3/robert-e-lee-high-school. 9 For more on this naming controversy, see Frayer, 2019.

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Coates, Richard. 2009. “A Strictly Millian Approach to the Definition of the Proper Name.” Mind and Language 24, no. 4: 433–444. https://doi.org/10.1111/j. 1468-0017.2009.01369.x. Cumming, Samuel. 2008. “Variabilism.” Philosophical Review 117, no. 4: 525–554. https://doi.org/10.1215/00318108-2008-015. ESPN, 2021, July 23. “Cleveland Changing Name from Indians to Guardians After 2021 Season.” Accessed February 20, 2023. https://www.espn.com/mlb/story/_/id/ 31868331/cleveland-changing-name-indians-guardians. Fenelon, James. 2016. Redskins? Sport Mascots, Indian Nations and White Racism. New York: Routledge. FSIS. 2018. “Petition For The Imposition of Beef and Meat Labeling Requirements: To Exclude Products Not Derived Directly From Animals Raised and Slaughtered from the Definition of ‘Beef’ and ‘Meat.” US Cattlemen’s Association. February 9, 2018. FSIS Case No. 2018. Accessed February 20, 2023. https://www.fsis.usda.gov/sites/ default/files/media_file/2020-07/18-01-Petition-US-Cattlement-Association020918.pdf. Fortuna, Gerardo. 2020, October 23. “MEPs Save ‘Veggie Burger’ From Denomina­ tion Ban.” Euroactiv. Accessed February 20, 2023. https://www.euractiv.com/sec tion/agriculture-food/news/meps-save-veggie-burger-from-denomination-ban/. Frayer, Lauren. 2019. “India is Changing Some Cities’ Names, and Muslims Fear Their Heritage is Being Erased.” Special Series: Faith and Power: How Hindu Nationalism is Changing India. National Public Radio. Accessed February 20, 2023. https://www. npr.org/2019/04/23/714108344/india-is-changing-some-cities-names-and-muslims-fea r-their-heritage-is-being-era. Hanks, Patrick. 2013. Lexical Analysis: Norms and Exploitations. Cambridge, UK: MIT Press. Héois, Aurélie. 2020. “When Proper Names Become Verbs: A Semantic Perspective.” Lexis: Journal in English Lexicology 16: doi:10.4000/lexis.4681. Hough, Carole. 2016. “Introduction.” In The Oxford Handbook of Names and Naming. Edited by Carole Hough, 1–13. Oxford: Oxford University Press. International Council of Onomastic Science. n.d. “List of Key Onomastic Terms.” https://icosweb.net/wp/wp-content/uploads/2019/05/ICOS-Terms-en.pdf. Jones, Richard. 2016. “Names and Archaeology.” In The Oxford Handbook of Names and Naming. Edited by Carole Hough, 467–475. Oxford: Oxford Uni­ versity Press. Kaplan, Jeffrey. 2019. Linguistics and Law. New York: Routledge. Kaplan, Justin and Anne Bernays. 1997. The Language of Names: What We Call Ourselves and Why It Matters. New York: Simon and Schuster. Keim, John. 2020, July 2. “Report: Investors Call On Nike, FedEx, PepsiCo To Cut Ties With Redskins Over Name.” ESPN. Retrieved February 21, 2023. https:// www.espn.com/nfl/story/_/id/29396653/report-investors-call-nike-fedex-pepsico-cut -ties-redskins-name. Klassen, Kimberly. 2022. “Proper Name Theory and Implications for Second Language

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King, Stephanie and VincentJanik. 2013. “Bottlenose Dolphins Can Use Learned Vocal Labels to Address Each Others.” Proceedings of the National Academy of Sciences of the United States of America 110, no. 32:13216–13221. Kondo, Noriko and Shigeru Watanabe. 2009. “Contact Calls.” Japanese Psychologi­ cal Research 51, no. 3:197–208. doi:10.1111/j.1468-5884.2009.00399.x

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Kripke, Saul. 1980. Naming and Necessity. Cambridge, MA: Harvard University Press. Long, Ralph B. 1969. “The Grammar of Proper Names.” Names: A Journal of Onomastics 17, no. 2: 107–126. Matteos, Pablo. 2014. Names, Ethnicity, and Populations: Tracing Identity in Space. New York: Springer. McNamara, Michelle. 2018. I’ll Be Gone In The Dark. London: Faber and Faber. Mill, John Stuart. [1872]. 1949. A System of Logic, 8th edition. London: Longmans, Green and Company, 1872. Motschenbacher, Heiko. 2020. “Corpus Linguistic Onomastics: A Plea for Corpus-based Investigations of Names.” Names: A Journal of Onomastics 68, no. 2: 88–103. https://doi.org/10.1080/00277738.2020.1731240. Nicolaisen, Wilhelm F. H. 1996. “Language Contact and Onomastics.” In Ein inter­ nationales Handbuch zeitgenössischer Forschung [An International Handbook of Contemporary Research] Edited by Hans Goebl, Peter Nelde, Zdeneˇ k Starý, and Wolfgang Wölck, 549–554. Berlin: De Gruyter Mouton. Nicolaisen, Wilhelm F. H. 1979. “Field-collecting In Onomastics.” Names: A Journal of Onomastics 27, no. 3: 162–178. https://doi.org/10.1179/nam.1979.27.3.162. Nicolaisen, Wilhelm F. H. 1984. “What Crisis In Onomastics?” Names: A Journal of Onomastics 32, no. 1: 14–25. https://doi.org/10.1179/nam.1984.32.1.14. Noga, Joe. 2020. “Cleveland Indians Name Debate Sparks Strong Reactions on Social Media.” Accessed February 20, 2023. https://www.cleveland.com/tribe/2020/07/cle veland-indians-name-debate-sparks-strong-reactions-on-social-media.html. Nuessel, Frank. 1994. “Objectionable Sport Team Designations.” Names: A Journal of Onomastics 42, no. 2: 101–119. Perry, Dayn. 2020, December 15. “Cleveland Indians To Change Team Name: Here Are Some of the Best Options Including Spiders and Crows.” CBS News. Retrieved February 21, 2023. https://www.cbssports.com/mlb/news/cleveland-indians-to-cha nge-team-name-here-are-some-of-the-best-options-including-spiders-and-crows/. Redmonds, George R., Turi King, and David Hey. 2011. Surnames, DNA, and Family History. Oxford: Oxford University Press. Ritchie, Hannah. 2022, November 30. “How Many Species Are There?” Our World In Data. Accessed February 18, 2023. https://ourworldindata.org/how-many-species-a re-there. Schlücker, Barbara and Tanja Ackermann. 2017. “The Morphosyntax of Proper Names: An Overview.” Folio Linguistica 51, no. 2: 309–339. https://doi.org/10. 1515/flin-2017-0011. Schultz, Jessi, 2021. “Cleveland Indian Fans React to Team’s Name Change.” Accessed February 20, 2023. https://www.news5cleveland.com/sports/clevela nd-guardians/cleveland-indians-fans-react-to-teams-name-change. Selyukh, Alina. 2019, July 23. “What Gets to be a ‘Burger’? States Restrict Labels on Plant-Based Meat.” The Salt: What’s On Your Plate. National Public Radio. Accessed February 20, 2023. https://www.npr.org/sections/thesalt/2019/07/23/ 744083270/what-gets-to-be-a-burger-states-restrict-labels-on-plant-based-meat. Shuy, Roger. 2002. Linguistic Battles in Trademark Disputes. London: Palgrave Macmillan. Smithsonian Institute. 1996. “Butterflies.” Information Sheet 168. Accessed February 23, 2022. https://www.si.edu/spotlight/buginfo/moths. Smithsonian Institute. n.d. “Moths.” Information Sheet 169. Accessed February 23, 2022. https://www.si.edu/spotlight/buginfo/moths.

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Tofurky. n.d. “Our Story Is Simple.” Accessed February 20, 2023. https://tofurky. com/our-story/our-roots/. Van Langendonck, Willy and Mark Van de Velde. 2016. “Names and Grammar.” The Oxford Handbook of Names and Naming. Edited by Carole Hough, 17–38. Oxford: Oxford University Press. Van Langendonck, Willy. 2007. “Proper Names As The Prototypical Nominal Category.” Names: A Journal of Onomastics 55, 437–444. https://doi.org/10. 1179/nam.2007.55.4.437. vom Bruck, Gabriele and Barbara Bodenhorn. 2006. “‘Entangled In Histories’: An Introduction to the Anthropology of Names and Naming.” In The Introduction to the Anthropology of Names and Naming. Edited by Gabriele vom Bruck, and Barbara Bodenhorn, 1–30. New York: Cambridge University Press. Wanker, Ralf, Yasuko Sugama, and Sabine Prinage. 2005. “Vocal Labelling Of Family Members in Spectacled Parrotlets, Forpus conspicillatus.” Animal Beha­ viour 70, no. 1:111–118. doi:10.1016/j.anbehav.2004.09.022 Wanker, Ralf, Jasmin Apcin, Bert Jennerjahn, and Birte Waibel. 1998. “Discrimina­ tion Of Different Social Companions in Spectacled Parrotlets (Forpus con­ spicillatus): Evidence For Individual Vocal Recognition.” Behavioral Ecology and Sociobiology 43, 197–202. doi:10.1007/s002650050481 Waxman, Olivia. 2017, August 10. “The Letters That Left New Yorkers Terrified Of The Son Of Sam.” Time. Accessed February 21, 2023. https://time.com/4886540/ son-of-sam-letters-anniversary/. Wilson, Stephen. 1998. The Means of Naming: A Social and Cultural History of Personal Naming in Western Europe. London: Routledge. Zelinsky, Wilbur. 2002. “Slouching Toward A Theory of Names: A Tentative Taxonomic Fix.” Names: A Journal of Onomastics 50, no. 4: 243–262. https://doi. org/10.1179/nam.2002.50.4.243.

2

Patrilineal Bias in the Adoption of Surnames following Marriage in the United Kingdom and the United States Eleanor Peters

Introduction Marriage is almost universal and remains a popular institution (Yodanis and Lauer 2017), despite a decline in rates in many countries over the past few decades (Eurostat 2022; Zagorsky 2016). According to the British census of 1971, about 85% of women between the age of 25 and 29 were married. By 2011 that figure had declined to 58% (ONS 2021). Since 1972, marriage rates in the US have fallen by almost 50% and are currently at their lowest point in recorded history, decreasing from 12 to 6.5 per 100,000 inhabitants in 2018 (Ortiz-Ospina and Roser 2020). However, marriage is still an institu­ tion that thousands of people enter into each year. Changes in social norms, particularly across the Western world, have allowed couples to enter into relationships without being stigmatized due to not being married, although many women do feel that they are judged for remaining single (Dolan 2019). Societal changes in gender norms and behaviors, such as more women in full-time employment, and greater male involvement in caring for children (Craig et al. 2018), have been reflected in marital habits, often in the dis­ tribution of housework and childcare (Pessin 2018). However, marriage is still often perceived as not being particularly egalitarian (Lefkovitz 2018); and one area where there has been ongoing inequality is in how couples negotiate their new formalized relationship in terms of naming conventions. Patronymic naming1 conventions are particularly strong in Englishspeaking countries where laws ensure that customs, at least in terms of heterosexual marriage, are inherently unequal. Women and men not only engage in different actions when they marry, in many cases, they legally cannot do the same thing, depending on national laws (Valetas 2001). Family names are significant symbols in society (Zhu 2010), and marital name changing can be a way to explore gender attitudes in society, as this illustrates cultural beliefs and social processes and reflects how people organize and classify their social worlds (Hamilton, Geist, and Powell 2011). Naming law and practice differ around the world. It is uncommon for women to change their name on marriage in a number of countries, such as Spain, France and South Korea. In these nations, women predominantly DOI: 10.4324/9781003431510-2

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retain their birth name (Abela and Walker 2014; Boxer and Gritsenk 2005; Noack and Wiik 2008; Zhu 2010). Research on the issue of name changing on marriage has been conducted in many countries. For example, recent investigations have been conducted in Japan (Shire and Nemoto 2020), Norway (Duncan, Ellingsaeter and Carter 2020), and Finland (Castrén 2019). However, most research on this topic has concentrated on North America (Scheuble and Johnson 2016; Scheuble, Klingemann, and Johnson 2000; Stoiko and Strough 2017), and to a lesser extent the UK (Peters 2018; Thwaites 2013; Finch 2008). This chapter focuses on the United Kingdom and the United States. More specifically, it examines the legal policies and socio-cultural traditions of marital name changing in those countries, including differences between localized and national (federal) laws.

History of Naming Conventions In the 19th century, US American abolitionist and suffragist, Lucy Stone pro­ claimed: “A wife should no more take her husband’s name than he should hers. My name is my identity and must not be lost” (qtd. in McMillen 2015: i). While many modern-day feminists would agree, at the time, Stone’s posi­ tion was nothing short of revolutionary. Throughout history, wives have been the legal property of their husbands. In countries such as the United Kingdom and the USA, due to British colonial history, there was the feudal doctrine of coverture.2 This restricted women’s societal and economic engagement, and virtually every aspect of their lives, until changes began to emerge in the early 20th century (Geddes and Lueck 2002). This legal unity undoubtedly encour­ aged the custom of women taking their husbands’ surnames after marriage due to “the old common law fiction that the husband and wife are one … [and] the one is the husband” (Gorence 1976: 883). Having a last name is a relatively new phenomenon as up until the 12th century, in many European countries, most people had only a first name. Early surnames reflected a person’s trade, or personal or physical characteristics, and not always a person’s paternity (Anthony 2010). The use of hereditary surnames did not become commonplace until around the 13th and 14th centuries. Names became a legal and social identifier, and state requirements around registration encouraged more consistency in who people were and their relations with others. According to Wilson (2009), there were some historical examples of men changing their name if the woman he married was heir to money and property to ensure that this would be passed to their children. However, it became overwhelmingly common for women to take their husband’s second name in many European countries after 1400, with matronymic naming taking on associations with illegitimacy. As Eichner (2014: 660) asserts: “Patrilineality presumes the absolute primacy of the male lineage, denying any value to the mother’s ancestry by deeming it unworthy of ongoing symbolic representation”. Historically, the authorities originally asserted

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only casual supervision over the use of surnames, but soon states saw the importance of consistent naming for taxation and other purposes (Scott et al. 2001). Eventually, over time, “the act of a woman taking a man’s name became rooted and embedded in formulating a family unit which is male-headed and unified under his name” (Anthony 2015: 83). A 1957 English legal treatise stated: [W]hen a woman on her marriage assumes, as she usually does in England, the surname of her husband in substitution for her father’s name, it may be said that she acquires a new name by repute. The change of name is in fact, rather than in law, a consequence of the marriage. (Halsbury, Laws of England (1957: 829), cited in Anthony 2015: 93) This male domination over marital surnames did not go unchallenged. For utopian socialist feminists in France in the mid-19th century, “control of the surname emerged as a vital feminist aim” (Eichner 2014: 661). The case of Paule Mink, a socialist feminist activist, illustrates this crusade. Under the Napo­ leonic Code of Law, women were subsumed by their husband’s civil status and, having been previously married to a Polish man in her youth, Mink was now regarded as Polish, meaning that she was at risk of deportation (Eichner 2004). She then married fellow activist, Maxime Negro, a Frenchman, and not only did she retain her own last name, defying patriarchal tradition, but her husband began calling himself Maxime Negro-Mink. French socialist feminists believed that rejecting patrilineality, including marital naming, would assist with a more equitable legal and social status for women (Eichner 2003). In France today, a married heterosexual woman’s legal name remains her birth name, but women frequently use either name as there is a recognized right to use their husband’s surname socially. Across the Atlantic, around the same time period, Lucy Stone, co-founder of the American Woman Suffrage Association (McMillen 2015), when marrying William Blackwell, produced a joint statement with her husband stating that Lucy would not change her name and that marriage laws “refuse to recognize the wife as an independent, rational being, while they confer on the husband an injurious and unnatural superiority, investing him with legal powers which no honorable man would exercise, and which no man should possess” (Cumbler 2008:101). Other women influenced to do the same became known as “Lucy Stoners”. The Lucy Stone League, a women’s rights organization dedi­ cated to name reform was established in 1921 and is still in existence (https://www.facebook.com/groups/lucystone/about/). The need for this organization’s continued existence can be seen in recent US history as up until 1976, in some US states, women were legally obliged to change their name and could run into difficulties in doing many day-to-day activities if they kept their birth name, such as voting, driving, and other legal issues. This is an interesting historical example of how the law could punish a woman if she deviated from societal norms—the state’s interest in women

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adopting their husband’s name outweighed some of their rights (Anthony 2015). Hawaii was the last state to have a statutory provision requiring a woman to assume her husband’s surname after marriage, which was revoked in 1975 (Gorence 1976).

Legal Aspects of Marriage The law often draws its principles from custom and practice, but it also supports or discourages certain social practices. For example, there are some rights and benefits, such as inheriting a housing tenancy or tax benefits, that are only due to couples that marry rather than those who cohabit. This could be a reason, despite the decrease in marriage rates in many parts of the world, for why the majority of people still get married. In 2018, a record 35% of Americans (or 39 million) aged 25 to 50, had never been married, an increase from 21% in 1998 (Wang 2020). “Married” or “civil partnered” remained the most common legal partnership status in 2020, accounting for just over half (50.6%) of the population aged 16 years and over in England and Wales (ONS 2021). In many countries, the institution of marriage has been extended to include homosexual couples. Countries that have done this include Chile, Switzerland and Taiwan (Human Rights Campaign 2022). Same-sex marriage can be seen as an indication of societal acceptance of widening marriage to previously excluded groups. There are differences between the English legal system which applies to England and Wales, and the legal system of Scotland (the countries which constitute Great Britain) and Northern Ireland (the countries that comprise the United Kingdom). Scotland and Northern Ireland are semi-autonomous and have separate legislative bodies to decide many domestic issues, including those surrounding marriage. For example, the legal minimum age to marry without parental consent is 16 years in Scotland and 18 years in England and Wales. England and Wales legislated for same-sex marriage in 2013, and Scotland did so in 2014. Same-sex marriage became available in 2019 in Northern Ireland. The beginning of state involvement in marriage in England and Wales starts with the Clandestine Marriage Act of 1753 which ruled that for a marriage to be legal it had to be carried out in a specific manner. The Act required couples to get married in a church or chapel by a minister,3 and they also had to issue a formal marriage announcement (banns) or obtain a license. The Marriage Act of 1836 allowed for non-religious civil marriages to be held in registry offices, which were established in towns and cities across England and Wales. The act also meant nonconformist,4 and Catholic couples could marry in their own places of worship, according to their own rites, as previously marriages had been administered by the Church of England regardless of the marrying couple’s religion. Other subsequent acts altered marriage, for example, the Age of Marriage Act 1929 increased the age of marriage to 16; prior to this it was 14 for males and 12 years for females.

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Although there were several minor laws pertaining to marriage in the 20th century, some developments were particularly important. The Matrimonial Causes Act of 1973 made marriages void unless they were between a man and a woman. This was exemplified in the case of Corbett v. Corbett (1971) when Lord Justice Ormrod ruled that April Ashley (Mrs. Corbett) was “born male and she remained male”; and because there could be no marriage between two men, her marriage to Arthur Corbett, the third Baron Rowallan was annulled (Fish­ bayn Joffe, 2007: 421). Subsequently the Gender Recognition Act of 2004 allowed for a person to marry in their “acquired gender”, although prior to the Marriage (Same Sex Couples) Act of 2013 it was not possible for a person who was already in a heterosexual marriage to remain so unless the original union was dissolved. The Human Rights Act (1998) introduced the European Convention on Human Rights into United Kingdom law in 2000. What this Act means is that any legis­ lation should be interpreted in conformity with convention rights, if possible. Article 12 of the European Convention on Human Rights creates the right to marry, and this right is one that is qualified by “national law”, meaning that as long as it is within the essence of the convention article, states can instigate dif­ ferent procedural conditions for marriage, such as rules about who can officiate the ceremony, or the age at which a person can marry (van der Sloot 2014). If the principle of Article 12 is not compromised, then there can be regulations and restrictions on marriage, and indeed across Europe there are a wide range of different policies and practices regarding marriage. Article 12 defines marriage as the “formation of a legally binding association between a man and a woman” (van der Sloot 2014: 399). Therefore, states are under no positive obligation to recognize same-sex marriage. However, the European Union’s Charter of Fundamental Rights5 includes the right to marry and found a family in Article 9, which is expressed without reference to gender. This may be progressively more important as people increasingly identify as non-binary. The regulation of marriage as per the United States Constitution is gen­ erally a matter of state law. As a result, there are some differences between states about the age at which a person can marry, and licensing regulations. The definition of marriage has been at the fore of the arguments about samesex marriage in the United States. The Defense of Marriage Act defines “marriage” as “a legal union between one man and one woman as husband and wife” (Kitzinger and Wilkinson 2004: 150). However, the Defense of Marriage Act (DOMA) was rendered unenforceable, in two stages: by the Supreme Court’s 2013 Windsor v. United States ruling which found that not recognizing same-sex marriages was a violation of the Fifth Amendment; and the 2015 Obergefell v. Hodges ruling which held that the Fourteenth Amend­ ment required states to license and recognize same-sex marriage. At the time of writing, Congress is considering the Respect for Marriage bill which would ensure that marriage equality is protected nationally through repealing DOMA (which still exists on paper, meaning it could be reinstated if those rulings were overturned). This Act would also provide federal protection for interracial marriage and marriages involving a non-US citizen (Solender 2022).

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Name Changing Laws and Customs With more relationship options than ever, the fact that name changing is predominantly a female activity when it comes to marriage is surprising.6 English common law does not require a woman to take her husband’s sur­ name after marriage (Daum 1974), but custom and practice encourages her to do so. Women’s marriage certificates can be used legally to change their surnames with various institutions such as banks, the Driver and Vehicle Licensing Agency and His Majesty’s Passport Office. Men wanting to change their names to that of their wife can do the same, but the government advice highlights that many organizations may be less prepared to recognize the change.7 This indicates that men who chose to change their name may face some additional administrative hurdles. Should the newly married couple want to take a non-conventional approach, such as blending their names (for example Adam Bow and Julie Wood become Mr. and Mrs. Bowood); by double-barreling, which is cre­ ated by combining the surnames of a married couple either by using a hyphen or by adding the second name of the husband’s onto the wife’s or vice-versa (for example, Julie Bow-Wood); or by creating a completely new surname for both spouses to use, this must be legalized using a formal “deed poll” method with an additional financial cost. A deed poll is a legally binding document that provides legal evidence that a person has changed their name. Since 2014, following the Marriage (Same Sex Couples) Act of 2013, same-sex couples have been able to change their name to that of either spouse using their marriage certificate(s). Same-sex and opposite-sex couples can use both partners’ names in combination by doubling or hyphenating their names, but as with heterosexual couples, this requires using the deed poll to apply to change names on official documents, and therefore involves an additional financial cost. While, as stated, the law in England and Wales (as in the rest of the United Kingdom) does not require women to change their names, what it does is dis­ courage other options, as the state encourages the existing state of affairs, as illustrated by the ease at which women can change their name compared to their husbands. However, there are many steps that a woman has to take to change her name with the various official agencies and organizations that require this information. One popular wedding website identifies in the region of 11 organizations that a newly married woman will need to contact to inform about their name change. This highlights how the act of changing their name at marriage is not a neutral nor effortless one for women (Davies 2022). Similarly, in the USA, marital last-name change is not gained simply by obtaining a marriage certificate—an individual must separately notify all relevant agencies, for example regarding driving licenses, voter registration, etc. For those heterosexual couples who want to have a new name together, the advice of the UK government is, rather than both change their name by deed poll, one means of avoiding double financial costs is for the man to

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change his via deed poll for a fee, and then the wife can use the marriage certificate to change hers to his without charge. This reinforces the femaleto-male name-change status quo. The same applies to a same-sex couple if one partner changes his/her name before the wedding/civil partnership, but the gendered element is not as apparent because the name could be changed by either spouse. There are also other rules if a name change is not con­ ventionally straightforward. For example, a woman wanting to revert to her birth, or any other, name after a divorce would need to use a deed poll to do so. This, interestingly, highlights women’s marital status as a matter of public record in a way that (heterosexual) men’s are not (Peters 2018). Recent surveys highlight the endurance of name-changing traditions. A British YouGov poll found that the majority of women intended to take their husband’s name on marriage (59%). The same poll found 61% of men wanted their wife to change her name to his (Smith 2016). There is, however, a difference between what people think they will do as a future projection, and what they actually do. The disparity between intention and actuality can be seen in statistics that show that almost 90% of women do change their name on marriage (Savage 2020). Somewhere the intention of around twothirds of people becomes a clear majority when acted on, indicating how strongly this cultural norm persists in many parts of the Western world. Despite arguably being a more equal society, in an era where more women identity as feminists, this bastion of patriarchal tradition remains strong. 61% of US women say “feminist” describes them well (Barroso 2020); 57% of women in Canada say they consider themselves to be a feminist (Environics Institute 2022); 67% of women aged 18–24 in the UK now identify as feminist (Gallagher 2019). The situation differs widely across the world. The many different rules and regulations indicate that there is something specifically culturally applicable to the prevalence of female name changing which seems mostly centered on English-speaking countries. In addition to the UK and USA as discussed here, patterns of name changing are similar in Australia and most of Canada (O’Brien 2021; Kingston 2017).8 One anomaly is in the Canadian state of Quebec, where the law states that women cannot change their name on marriage.9 Castrén’s research (2019) in Finland considered how couples make decisions about names together while in the process of becoming a new family unit, following a law passed in 1986. The Finnish Names Act treats partners equally—prior to this, it was mandatory for women to change their name on marriage and either take their husband’s name as their only name or use his name after her name with a hyphen (Castrén 2019)— this means that couples can keep their original names or choose any name, or they can use a double-barreled surname. Legally, both partners are assumed to keep their original names unless they state otherwise. When partners have kept their original names, children can have either their mother’s or father’s names, but not a double-barreled name. Under Japanese law, married couples are not allowed separate surnames and

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have to choose one or the other. About 96% choose the man’s name (Taniguchi and Kaufman 2020). These examples highlight global contradictions in marital naming.

Reasons for Name Changing A number of researchers in this area have identified that most motivations regarding name changing were concerns about family unity (Gooding and Kreider 2010; Scheuble and Johnson 2005; Goldin and Shim 2004). However, this tends to be a concern that women take on, not men. When women (and some men) mention identity in research studies, it is often in relation to a joint identity for married couples, or in terms of having a family identity rather than individual self-identity (Peters 2018; Twenge 1997). Another frequently mentioned reason for marital name changing is that of tradition as research indicates that non-traditional choices can incur negative societal responses (Murray 1997), particularly if the couple plan to have children (Scheuble and Johnson 1998). Much research in this area shows that patriarchal norms regarding women taking their husband’s surnames are frequently framed as “traditional values” (Jones et al. 2017). Analysis of the name changing choices of women in English-speaking Western countries such as the USA and the UK indicate that there are var­ ious predictors of whether women change their name on marriage or not, one of which is whether they identify as a feminist (Peters 2018). In terms of marriage and family issues, earlier first-wave feminism from the mid-19th century was focused primarily on discrimination against married women and laws that subsumed the legal, economic, and social identities of wives to that of their husbands. Later second-wave, or radical, feminists from the 1960s were instrumental in emphasizing how relations between men and women were not just ones of individual choices, and the importance of “pri­ vate” issues of sexuality and family life were vital sources of personal and institutional power (Willis 1982). The so-called radical feminism of this period highlighted gendered social roles and issues of male violence, and feminists also campaigned against marriage, often perceiving it as an institution that was harmful for women (Echols 1989). In my own research looking at opinions about women’s name changing after marriage (Peters 2018), I found much defensiveness from women about their decision to change their name as they felt they were making their own choices; choices that they believed feminism had given to them. One stated: “feminism is largely about choice and women can have the choice to change their names or not, so let them be!”; but another suggested “it’s great that it’s a choice, but most women are making the traditional patriarchal choice and therefore—is it really their choice?” (Peters 2018: 180–181). Arguably feminism has always been a political movement about equality rather than a vehicle for supporting each individual woman’s choice which may or may not be progressive (Budgeon 2015).

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Issues of masculinity and femininity norms and power dynamics obviously occur in romantic relationships, and research indicates that many women change their surnames to that of their husband’s because he expressly or covertly suggests this. A woman’s name-changing choices reflect on her and her husband (Robnett, Wertheimer, and Tenenbaum 2018). One factor that couples may consider is the projection of family unity once married. In terms of societal expectations, there does appear to be an inter­ nalized double standard in that the obligation to construct and preserve family unity falls on women and not men in terms of families having the same name, an issue that returns often in research in this area as a reason for name changing (Stoiko and Strough 2017). Women have to take the mantle of negotiating their own identities, and that of being a wife, in a way that men do not (Jones et al. 2017). Returning to the theme of heterosexual and homosexual marital name changing, Jones and colleagues’ (2017) study, which drew on data from an online survey of 1,000 UK respondents, found that traditional, heteronormative practices regarding naming following marriage continued to be prevalent. In a heterosexual marriage, any decision other than for a woman to take her hus­ band’s name was considered deviant. The authors suggest that there are much greater ideological restrictions imposed on mixed-sex couples, and the women in their study who felt they might be losing something about their own identity would still feel obliged to take on a new name. The respondents who identified as being in a same-sex couple suggested that they have more relative freedom and equality (ibid.). Research conducted by Underwood and Robnett (2019) examined how people in same-sex relationships made decisions about marital surname changes. A number of participants said that they did not want to change names, often highlighting how they perceived that as a heteronormative practice,10 and same-sex couples described keeping their own names as opting out of the traditional gender naming behaviors. However, the study also found some respondents who felt that having a shared surname was a good way to demonstrate familial links between parents and children, which was extremely important symbolically given that these relationships have previously not had social or legal recognition. Extending marriage to pre­ viously discriminated against couples11 was a significant symbolic public recognition of the equal status of couples who are not heterosexual (Nuti 2016). The inclusion of gay and lesbian couples into the institution of mar­ riage may offer a different, and perhaps more equal way of being married. Patterson and Farr (2017) studied 106 families, 27 of whom were headed by lesbian couples, 29 by gay couples, and 50 by heterosexual couples who had adopted a baby within a few weeks of life. They found that heterosexual adoptive couples were more likely than lesbian and gay adoptive couples to have identical last names, whereas gay and lesbian couples were most likely to have retained the last name they were given at birth. Heterosexual par­ ents were most likely to refer to tradition as their reasons for doing this, but

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same-sex parents were more likely to state issues about equality or practi­ cality. As time proceeds, it may be that as same-sex marriage becomes more commonplace the relative freedom of same-sex couples in their naming choices at marriage becomes more recognized. At that point, people in het­ erosexual unions may recognize a fuller range of options regarding naming. These possibilities—from keeping one’s own name to creating something entirely new—may become more common.

Conclusion The resilience of the institution of marriage, despite sweeping societal change, is interesting. Recent activity around marriage in English-speaking countries has been to redefine and reform the institution to include previously excluded people from its reach. This may be part of a move towards a more neoliberal society where marriage is promoted as a means of support, shifting the burden of support from a welfarist, interventionist governance society to that of family and individual responsibility (Whitehead 2012). Traditional societal goals in most societies highlight marriage as the ultimate goal for heterosexual and, in many jurisdictions, same-sex couples, as marriage is seen as a great stabilizer which emphasizes responsibility and commitment to family. The values associated with marriage can be seen by state sponsored rewards, such as transferable tax allowances and other financial benefits (van Acker 2016). The way in which the state organizes name changing on marriage is also indicative of traditional societal mores. Heterosexual couples in the US and the UK overwhelmingly follow patronymic conventions (Patterson and Farr 2017). Despite the influence of feminism in asserting that all women’s choi­ ces are feminist choices, there does appear to be a need for some societal change before genuine free choice in name changing happens on marriage. That governments foster inequalities is no great surprise as the law often privileges men over women. However, if laws made it easier for men and women to change names, hyphenate or otherwise, then perhaps more men may be willing to cede some of their naming advantages. The process of changing names, whether that be to their spouse’s name, or to a combina­ tion of names, may normalize the issue; then women, feminist or not, may really truly have a choice.

Notes 1 This is a given name from a father, or an earlier male ancestor. 2 Of course, this was only upper-class white women, because those women who lived and died in slavery were legally prohibited from marrying or if single, controlling their own earnings (Klein 2021). 3 Jews and Quakers were exempted from the 1753 Marriage Act which stated that weddings should be conducted by the Church of England. 4 i.e., people whose faith did not correlate with the state recognized religion, the Church of England.

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5 European Convention on Human Rights applies to EU (European Union) and non-EU countries whereas the Charter of Fundamental Rights requires EU membership. 6 According to Pilcher (2017: 817) “there are no available figures for how many men change their surname to that of their wife [in the UK], but, in contrast to women’s experiences, it remains a rare, non-normative, and less than straightforward process”. 7 The deed poll office (a government body which oversees name changes) states in their “Advice for a man getting married”: “The custom of changing your name on getting married has traditionally applied to women only. However, men can use a marriage certificate as evidence of a change of name, in the same way that a woman can. All of our advice for women getting married applies equally to men—whether you’ve got married to a woman, or a man (a same-sex marriage). UK government bodies such as HM Passport Office and the DVLA treat married men and married women exactly the same. If you do decide to make a change to your surname, you’re much more likely to encounter difficulty changing your records with other organisations who may be less prepared to recognise your change of name”. https://deedpolloffice.com/ advice/man-getting-married#:~:text=The%20custom%20of%20changing%20your, way%20that%20a%20woman%20can. 8 Canada has some of the earliest same-sex marriage laws in the world, which were progressively introduced in several provinces with a federal gender-neutral marriage definition entering law in 2005 (Smith 2007). Australia legalised samesex marriage in 2017 following a referendum (Karp 2017). 9 Under Quebec civil law, since 1980, marriage is not mandated as a ground for legal name change, though a wife may use her husband’s name socially (MacEa­ cheron 2016). 10 Heteronormativity can be defined as a preference toward heterosexual relation­ ships, but it also relates to ideas that there are distinct roles for males and females (Duncan, Ellingsaeter, and Carter 2019). 11 As previously with inter-racial marriages and marriages between US citizens and foreigners in the US (Nock 2005).

References Abela, Angela and Janet Walker. 2014. “Global Changes in Marriage, Parenting and Family Life: An Overview.” In Contemporary Issues in Family Studies: Global Perspectives on Partnerships, Parenting and Support in a Changing World, edited by Angela Abela, and Janet Walker, 5–15. Chichester: Wiley. Anthony, Deborah. 2015. “In the Name of the Father Compulsion, Tradition, and Law in the Lost History of Women’s Surnames.” The Journal of Jurisprudence 25: 59–95. Barroso, Amanda. 2020. “61% of U.S. Women Say ‘Feminist’ Describes Them Well: Many See Feminism As Empowering, Polarizing.” Pew Research Center. https://p ewrsr.ch/2DjsXV4. Boxer, Diana and Elena Gritsenko. 2005. “Women and Surnames Across Cultures: Reconstituting Identity In Marriage.” Women and Language 28, no. 2: 1–11. link.ga le.com/apps/doc/A141493509/AONE?u=anon~64dba88d&sid=googleScholar&xid= 56d01b62. Budgeon, Shelley. 2015. “Individualised Femininity and Feminist Politics of Choice.” European Journal of Women’s Studies 22, no. 3: 303–318. Burrows, Andrew. 2013. English Private Law. Oxford: Oxford University Press.

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Castrén, Anna-Maija. 2019. “Becoming ‘Us’: Marital Name, Gender, and Agentic Work in Transition to Marriage.” Journal of Marriage and Family 81, no. 1: 248–263. https:// doi.org/10.1111/jomf.12519. Cherlin, Andrew J. 2004. “The Deinstitutionalization of American Marriage.” Jour­ nal of Marriage and Family 66, no. 4: 848–861. https://doi.org/10.1111/j.0022-2445. 2004.00058.x. Craig, Lyn, and Abigail Powell. 2018. “Shares of Housework Between Mothers, Fathers and Young People: Routine and Non-routine Housework, Doing House­ work for Oneself and Others.” Social Indicators Research 136: 269–281. https:// doi.org/10.1007/s11205-016-1539-3. Cumbler, John T. 2008. From Abolition to Rights for All: The Making of a Reform Community in the Nineteenth Century. Philadelphia: University of Pennsylvania Press. Daum, Roslyn G. 1974. “The Right of Married Women to Assert Their Own Surnames.” U. Mich. J. L. Reform 8: 63. https://repository.law.umich.edu/mjlr/vol8/iss1/3. Davies, Mollie. 2022, April 11. “The Complete Guide to Changing Your Name After Marriage.” Hitched. https://www.hitched.co.uk/wedding-planning/organising-a nd-planning/changing-your-name/. Dolan, Paul. 2019, June 4. “Singled Out: Why Can’t We Believe Unmarried, Childless Women are Happy?” The Guardian. https://www.theguardian.com/lifeandstyle/ 2019/jun/04/singled-out-why-cant-we-believe-unmarried-childless-women-are-happy. Duncan, Simon, Anne Lise Ellingsaeter, and Julia Carter. 2020. “Understanding Tradition: Marital Name Change in Britain and Norway.” Sociological Research Online 25, no. 3: 438–455. https://doi.org/10.1177/1360780419892637. Duncan, Simon G., Gabrielle Aguilar, Cole G. Jensen, and Brianna M. Magnusson. 2019, 11 April. “Survey of Heteronormative Attitudes and Tolerance Toward Gender Non-conformity in Mountain West Undergraduate Students.” Front. Psychol. https:// doi.org/10.3389/fpsyg.2019.00793. Echols, Alice. 1989. Daring to be Bad: Radical Feminism in America 1965–75. Minneapolis: University of Minnesota Press. Eichner, Carolyn J. 2003. “‘Vive la Commune!’ Feminism, Socialism, and Revolutionary Revival in the Aftermath of the 1871 Paris Commune.” Journal of Women’s History 15, no. 2: 68–98. doi:10.1353/jowh.2003.0049. Eichner, Carolyn J. 2004. Surmounting the Barricades: Women in the Paris Com­ mune. Wilmington: Indiana University Press. Eichner, Carolyn J. 2014. “In the Name of the Mother: Feminist Opposition to the Patronym in Nineteenth-Century France.” Signs 39, no. 3: 659–683. https://doi.org/ 10.1086/674321. Environics Institute. 2022, January 4. “Canada – Fall 2021 Women’s Equality and the Women’s Movement: An Update.” Environics Institute for Survey Researchhttps:// www.environicsinstitute.org/projects/project-details/women%27s-equality-and-the­ women%27s-movement-an-update. Eurostat. 2022, May. “Marriage and Divorce Statistics.” Eurostat. https://ec.europa. eu/eurostat/statistics-explained/index.php?title=Marriage_and_divorce_statistics# Fewer_marriages.2C_fewer_divorces. Finch, Janet. 2008. “Naming Names.” Sociology 42, no. 4: 709–725. doi:10.1177/ 0038038508091624. Fishbayn Joffe, Lisa. 2007. “‘Not Quite One Gender or the Other’: Marriage Law and the Containment of Gender Trouble in the United Kingdom.” Journal of Gender, Social Policy & the Law 15, no. 3: 413–441.

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Gallagher, Sophie. 2019, November 18. “Two-thirds of Women Now Identify as Fem­ inist, According to Study.” Independent. https://www.independent.co.uk/life-style/ women/percentage-women-feminist-young-womens-trust-survey-a9208051.html. Geddes, Rick and Dean Lueck. 2002. “The Gains from Self-Ownership and the Expansion of Women’s Rights.” American Economic Review 92, no. 4: 1079–1092. https://www.jstor.org/stable/3083297. Goldin, Claudia and Maria Shim. 2004. “Making a Name: Women’s Surnames at Marriage and Beyond.” The Journal of Economic Perspectives 18, no. 2: 143–160. doi:10.1257/0895330041371268. Gooding, Gretchen E. and Rose M. Kreider. 2010. “Women’s Marital Naming Choices in a Nationally Representative Sample.” Journal of Family Issues 31, no. 5: 681–701. https://doi.org/10.1177/0192513X09344688. Gorence, Patricia J. 1976. “Women’s Name Rights.” Marquette Law Review 59, no. 4: 876–899. http://scholarship.law.marquette.edu/mulr/vol59/iss4/8. Hamilton, Laura, Claudia Geist, and Brian Powell. 2011. “Marital Name Change as a Window into Gender Attitudes.” Gender and Society 25, no. 2: 145–175. https:// doi.org/10.1177/0891243211398653. Hoffnung, Michele. 2006. “What’s in a Name? Marital Name Choice Revisited.” Sex Roles 55: 817–825. https://doi.org/10.1007/s11199-006-9133-9. Human Rights Campaign. 2022. “Marriage Equality Around the World.” https:// www.hrc.org/resources/marriage-equality-around-the-world. Jones, Lucy, Sara Mills, Laura L. Paterson, Georgina Turner, and Laura Coffey-Glover. 2017. “Identity and Naming Practices in British Marriage and Civil Partnerships.” Gender and Language 11, no. 3: 309–335. https://doi.org/10.1558/genl.27916. Karp, P. 2017, December 7. “Marriage Equality Law Passes Australia’s Parliament in Landslide Vote.” The Guardian. https://www.theguardian.com/australia-news/ 2017/dec/07/marriage-equality-law-passes-australias-parliament-in-landslide-vote. Kingston, Anne. 2017, June 7. “In Return to Tradition, More Young Women Taking Husband’s Names.” Maclean’s. https://www.macleans.ca/society/in-return-to-tra dition-more-young-women-taking-husbands-names/. Kitzinger, Celia and Sue Wilkinson. 2004. “The Re-Branding of Marriage: Why We Got Married Instead of Registering a Civil Partnership.” Feminism and Psychol­ ogy 14, no. 1: 127–150. doi:10.1177/0959353504040308. Klein, Diane. 2021. “Their Slavery Was Her Freedom: Racism and the Beginning of the End of Coverture.” Duquesne Law Review 59, no. 6: 106–124. Koffler, Jacob. 2015, June 29. “Here Are Places Women Can’t Take Their Husband’s Name When They Get Married.” Time, https://time.com/3940094/maiden-ma rried-names-countries/#:~:text=Provincial%20law%20in%20Quebec%20forbids, her%20husband%27s%20surname%20after%20marriage.2. Lefkovitz, Alison. 2018. Strange Bedfellows: Marriage in the Age of Women’s Liberation. Philadelphia: University of Pennsylvania Press. Leneman, Leah. 1999. “The Scottish Case That Led to Hardwicke’s Marriage Act”. Law and History Review 17, no. 1: 161–169. https://doi.org/10.2307/744190. Long, Heather. 2013, October 6. “Should Women Change their Names after Mar­ riage? Consider the Greek Way.” The Guardian. https://www.theguardian.com/ commentisfree/2013/oct/06/women-change-name-after-marriage-greece. MacEacheron, Melanie. 2016. “North American Women’s Marital Surname Change: Practices, Law, and Patrilineal Descent Reckoning.” Evolutionary Psychological Science 2, no. 2: 149–161. doi:10.1007/s40806-016-0045-9.

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Mackay, Finn. 2021, October 17. “Don’t Write Off Radical Feminism—It’s Always Been Ahead of Its Time.” The Guardian. https://www.theguardian.com/comm entisfree/2021/oct/17/radical-feminism-social-justice. McMillen, Sally G. 2015. Lucy Stone: An Unapologetic Life. Oxford: Oxford University Press. McRobbie, Angela. 2013. “Feminism, the Family and the New ‘Mediated’ Maternalism.” New Formations 80: 119–137. doi:529456. Murray, Thomas E. 1997. “Attitudes Towards Married Women’s Surnames: Evi­ dence from the American Midwest.” Names: A Journal of Onomastics 45, no. 3: 163–183. doi:10.1179/nam.1997.45.3.163. Noack, Turid and Kenneth Aarskaug Wiik. 2008. “Women’s Choice of Surname Upon Marriage in Norway.” Journal of Marriage and Family 70, no. 2: 507–518. doi:10.1111/j.1741-3737.2008.00497.x. Nock, Steven L. 2005. “Marriage as a Public Issue.” The Future of Children 15, no. 2: 13–32. http://www.jstor.org/stable/3556561. Nuti, Alasia. 2016. “How Should Marriage be Theorised?” Feminist Theory 17, no. 3: 285–302. doi:10.1177/1464700116666235. O’Brien, Kerrie. 2021, March 7. “And Here’s To You Mrs.: Why Women Take Their Husbands’ Name.” Sydney Morning Herald. https://www.smh.com.au/lifestyle/life-a nd-relationships/and-here-s-to-you-mrs-why-women-take-their-husband-s-names-2021 0304-p577rk.html. Office for National Statistics. 2021. “Population Estimates by Marital Status and Living Arrangements, England and Wales: 2020.” London: Office for National Statisticshttps:// www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populatio nestimates/bulletins/populationestimatesbymaritalstatusandlivingarrangements/2020. Ortiz-Ospina, Esteban and Max Roser. 2020. “Marriages and Divorces.” OurWorldIn­ Data.org https://ourworldindata.org/marriages-and-divorces. Patterson, Charlotte J. and Rachel H. Farr. 2017. “What Shall We Call Ourselves? Last Names Among Lesbian, Gay, and Heterosexual Couples and Their Adopted Children.” Journal of GLBT Family Studies 13, no. 2: 97–113. doi:10.1080/ 1550428X.2016.1169239. Pessin, Léa. 2018. “Changing Gender Norms and Marriage Dynamics in the United States.” Journal of Marriage and Family 80: 25–41. doi:10.1111/jomf.12444. Peters, Eleanor. 2018. “The Influence of Choice Feminism on Women’s and Men’s Attitudes Towards Name Changing at Marriage: An Analysis of Online Comments on UK Social Media.” Names: A Journal of Onomastics 66, no. 3: 176–185. https:// doi.org/10.1080/00277738.2017.1415540. Pilcher, Jane. 2017. “Names and ‘Doing Gender’: How Forenames and Surnames Contribute to Gender Identities, Difference, and Inequalities.” Sex Roles 77, no. 11: 812–822. https://doi.org/10.1007/s11199-017-0805-4. Robnett, Rachael, Marielle Wertheimer, and Harriet Tenenbaum. 2018. “Does a Woman’s Marital Surname Choice Influence Perceptions of Her Husband? An Analysis Focusing on Gender-Typed Traits and Relationship Power Dynamics.” Sex Roles 79: 59–71. doi:10.1007/s11199-017-0856-6. Rose, Nikolas and Peter Miller. 1992. “Political Power Beyondthe State: Problematics of Government.” The British Journal of Sociology 43, no. 2: 173–205. https://doi. org/10.2307/591464.

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Savage, Maddy. 2020, September 24. “Why Do Women Still Change Their Names?” BBC The Life Project. https://www.bbc.com/worklife/article/20200921-why-do­ women-still-change-their-names. Scheuble, Laurie K., Katherine Klingemann, and David R. Johnson. 2000. “Trends in Women’s Marital Choices: 1966–1996.” Names: A Journal of Onomastics 48, no. 2: 105–114. doi:10.1179/nam.2000.48.2.105. Scheuble, Laurie K., and David R. Johnson. 1998. “Attitudes Toward Women’s Marital Name Choices.” Names: A Journal of Onomastics 46, no. 2: 83–96. doi:10.1179/nam.1998.46.2.83. Scheuble, Laurie K., and David R. Johnson. 2016. “Keeping Her Surname as a Middle Name at Marriage: What Predicts this Practice Among Married Women Who Take Their Husband’s Last Name?” Names: A Journal of Onomastics 64, no. 4: 202–216. doi:10.1080/00277738.2016.1197645. Shin, Ki-Young. 2008. “‘The Personal is the Political’: Women’s Surname Change in Japan.” Journal of Korean Law 8: 161–179. Shire, Karen A. and Kumiko Nemoto. 2020. “The Origins and Transformations of Conservative Gender Regimes in Germany and Japan.” Social Politics 27, no. 3: 432–448. doi:10.1093/sp/jxaa017. Slade, Michael. 2015. “Who Wears the Pants? The Difficulties Men Face When Trying to Take Their Spouses’ Surname after Marriage.” Family Court Review: An Interdisciplinary Journal 53, no. 2: 336–351. doi:10.1111/fcre.12149. Smith, Matthew. 2016, September 13. “Taking a New Husband’s Surname is Still Popular with Younger Women.” YouGov https://yougov.co.uk/topics/lifestyle/arti cles-reports/2016/09/13/six-ten-women-would-like-take-their-spouses-. Smith, Miriam. 2007. “Framing Same-sex Marriage in Canada and the United States: Goodridge, Halpern and The National Boundaries of Political Discourse.” Social & Legal Studies 16, no: 1: 5–26. doi:10.1177/0964663907073444. Solender, Andrew. 2022, July 18. “Congress Moves to Protect Marriage Equality after Roe Decision.” Axios. https://www.axios.com/2022/07/18/congress-repea l-defense-marriage-act. Stannard, Una. 1984. “Manners Make Laws: Married Women’s Names in the United States.” Names: A Journal of Onomastics 32, no. 2: 114–128. https://doi.org/10. 1179/nam.1984.32.2.114. Stoiko, Rachel R. and JoNell Strough. 2017. “‘Choosing’ The Patriarchal Norm: Emerging Adults’ Marital Last Name Change Attitudes, Plans, and Rationales.” Gender Issues34: 295–315. doi:10.1007/s12147-017-9183-z. Thwaites, Rachel. 2013. “The Making of Selfhood: Naming Decisions on Marriage.” Families, Relationships, and Societies 2, no. 3: 425–439. https://doi.org/10.1332/ 204674313X665913. Taniguchi, Hiromi and Gayle Kaufman. 2020. “Attitudes Toward Married Persons: 2020. Surnames in Twenty-First Century Japan.” Gender Issues 37: 205–222. doi:10.1007/s12147-019-09245-z. Twenge, Jean M. 1997. “Mrs. HisName.” Psychology of Women Quarterly 21, no. 3: 417–429. doi:10.1111/j.1471-6402.1997.tb00122.x. Underwood, Carrie R. and Rachel D. Robnett. 2019. “‘I Would Like Us to Share a Name So That We Can Be Recognized in Society’: Marital Surname Preferences in Same-Sex Relationships.” Journal of Homosexuality 68, no. 2: 290–310. doi:10.1080/00918369.2019.1651110.

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Valetas, Marie-France. 2001. “The Surname of Married Women in the European Union.” Population and Societies 367. https://www.ined.fr/en/publications/editions/p opulation-and-societies/the-surname-of-married-women-in-the-european-union-en/. van Acker, Elizabeth. 2016. “Disconnected Relationship Values and Marriage Policies in England.” Journal of Social Welfare and Family Law 38, no. 1: 36–50. doi:10.1080/09649069. van der Sloot, Bart. 2014. “Between Fact and Fiction: An Analysis of the Case-Law on Article 12 of the European Convention on Human Rights.” Child & Family Law Quarterly 26: 397. https://heinonline.org/HOL/LandingPage?handle=hein. journals/chilflq26&div=38&id=&page=. Wang, Wendy. 2020, September 9. “The Share of Never-Married Americans Has Reached a New High.” Institute for Family Studies https://ifstudies.org/blog/ the-share-of-never-married-americans-has-reached-a-new-high#:~:text=At%20the %20same%20time%2C%20however,analysis%20of%20U.S.%20Census%20data. Whitehead, Jaye Cee. 2012. The Nuptial Deal: Same Sex Marriage and Neo-liberal Governance. Chicago: University of Chicago Press. Willis, Ellen. 1982. “Toward a Feminist Sexual Revolution.” Social Text 6: 3–21. doi:10.2307/466614. Wilson, Rebekah. 2009, December. “A Name of One’s Own: Identity, Choice and Performance in Marital Relationships.” PhD diss., Gender Institute of the London School of Economics and Political Science. http://etheses.lse.ac.uk/305/. Yodanis, Carrie and Sean Lauer. 2017. Getting Married: The Public Nature of Our Private Relationships. New York: Routledge. Zagorsky, Jay L. 2016, June 2. “Why are Fewer People Getting Married?” The Con­ versation. https://theconversation.com/why-are-fewer-people-getting-married-60301. Zhu, Hongmei. 2010. “A Cultural Comparison of English and Chinese Family Names.” Asian Social Science 6, no. 11: 226–228. doi:10.5539/ass.v6n11p226.

3

Naming, Expressive Interests,

and the Law

The Implications of Governmental Form Design Laura A. Heymann

Introduction In September 2014, Dana Zzyym, an intersex individual, applied for a United States passport in advance of a planned international trip. The application provided two checkboxes for indicating the applicant’s sex: male or female. Zzyym, not wanting to make a false statement, wrote “intersex” and supplied their amended birth certificate (which identified their sex as unknown), a letter requesting that the passport indicate that the sex designation was “X”, and a letter from a physician attesting that Zzyym was intersex (Zzyym v. Pompeo 2020).1 The US State Department denied the application, stating that every applicant had to check either the “male” or “female” box. It offered three options: 1.) Zzyym could obtain a passport with a “female” marker, consistent with Zzyym’s driver’s license at the time; 2.) Zzyym could obtain a passport with a “male” marker with a confirming letter from a physician; or 3.) Zzyym could withdraw the application. Zzyym declined to choose from these options and requested reconsideration, which the State Department denied. Zzyym then brought suit in the US District Court for the District of Colorado, which found that the denial was arbitrary and capricious under the Administrative Proce­ dure Act. After remand, the State Department again denied the application, the district court again found the denial unlawful, and Zzyym appealed to the US Court of Appeals for the Tenth Circuit. The State Department offered five justifications for requiring applicants to choose between male and female markers, two of which are relevant here: that the policy “helped identify individuals for passports”, and that the policy “helped make passport data useful for other agencies” (Zzyym v. Pompeo 2020: 1023). (The appellate court rejected the government’s argument that an interest in accuracy and reliability justified the policy, noting that a binary sex classifi­ cation rendered passports inaccurate for intersex individuals.) In deciding whether to issue a passport, the State Department searches the database of other federal agencies (such as the US Department of Justice) for criminal records and other information; conversely, other agencies use the State Department’s records for their own searches. Because the other databases DOI: 10.4324/9781003431510-3

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tended to use a binary gender marker, the government argued, it was rational for the State Department to require the same on a passport application to facilitate matching. Finding that these justifications were the only ones offered by the government that were adequately supported by the evidence, the appellate court remanded the case to the district court for a determination of whether the State Department would still have denied Zzyym’s application if it could rely only on those two justifi­ cations. Ultimately, the State Department committed to reversing this policy in a 2021 press release (US Department of State 2021); the parties agreed to dismiss the case, and Zzyym received a US passport in October 2021, the first US passport issued with an “X” gender marker (Hauser 2021). This former US policy is but one example of how the construction of governmental forms to facilitate the use of data can result in serious restrictions on the ability of individuals to submit truthful information about their identities. This is particularly true with respect to forms and personal names. In some instances, form design operationalizes official gov­ ernment policy. In California, for example, the change to statutory law wrought by Proposition 63 in 1986, declaring English to be the state’s official language, effectively resulted in a prohibition of names submitted for birth certificates and other documents that contain diacritics. Thus, the writer who attempted to register his baby daughter’s name as Lucía now has a daughter who, as far as the state is concerned, is named Lucia—a name that differs both in spelling and in pronunciation (D’Ammassa 2019; Freedberg 2002). In the naming context, Mary Bucholz has described this as “indexical bleaching” (Bucholz 2016). This result can also happen even without a statutory pronouncement. Like the “desk-clerk law” that Elizabeth Emens described in 2007 with respect to marital name changing (“what the person at the desk tells you the law is” (Emens 2007: 765)),2 governmental or other form design can create a similar “form-design law”, in which the names or characters that a paper or online form accepts can have the effect of determining one’s legal identity. As one example, the New York Times reported in the early 1990s about an individual named Stephen O who eventually legally changed his family name to Oh because computer systems, including credit bureaus, had not been programed to recognize his family name. “Without changing my name”, he said, “I can’t apply for a loan because the computers say I don’t have a credit history” (New York Times 1991; internal quotation marks omitted). The US State Department’s policy on name usage for passport applications, as of this writing, provides that diacritics must be crossed out on the appli­ cation “even if they appear on the applicant’s evidence of citizenship/ nationality or ID”, because they are not supported by the relevant computer system. This instruction is given despite the policy’s statement that one of its objectives is “[t]o reflect the applicant’s actual name usage” (US Department of State 2022).

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Restructuring these systems, or simply changing a name within existing systems, can be difficult, as Amy J. Ko has documented from personal experience (Ko 2019).3 However, the failure of systems to accommodate naming choices should not automatically be excused by mere administrative convenience. Completely overhauling legacy systems may involve substantial expense, but that expense should be weighed against the fact that failing to have governmental forms accurately reflect individuals’ names causes not only a systemic harm but also a dignitary one. More importantly, in the case of newly created systems, government officials and design teams that deter­ mine policies and parameters for such systems have little justification for not taking these considerations into account at the outset. Some scholars resist the idea that the name reflected in government documents or databases should be considered an individual’s “legal name” at all, given the recognition that under the common law (i.e., the law that develops through custom and judicial precedent rather than through statute or government regulation) one can call oneself whatever one chooses (Baker and Green 2021). However, so long as important governmental benefits are conditioned on the acceptance and inclusion of a name in a database or on a document (Obasi et al. 2019),4 it is critical that policy makers recognize that policy may well be made not only by a statute or an official pronouncement but also by how the form that requests one’s name is designed. When a form’s design requires an individual to misrepresent their true name—just as Dana Zzyym was required to misrepresent their gender identity—it has the expressive effect of conveying which names are deemed acceptable and creates naming law sub silentio, without any legislative or judicial pronounce­ ment. Ultimately, as Dean Spade has written, we should recognize that choices about how to classify and recognize personal information do not reflect some natural state of being; rather, they “create reality” (Spade 2007: 745; Clarke 2019).

The Law of Names5 The formal regulation of names has not always been an assumed aspect of societal interaction. In some communities, members could identify one another through kin or other relationships, referring to an individual by their occupation or relationship to another community member (Alford 1987: 72). Once individuals began to travel outside of their communities, this system was no longer effective, and governmental regulation of activity—such as taxation and conscription—required a less situational means of identifying individuals that has perhaps permanently inserted the government into many naming decisions. As one set of scholars has noted, “the use of inherited familial surnames represents a relatively recent phenomenon intricately linked to the aggrandizement of state control over individuals and the development of modern legal systems and property regimes” (Scott, Tehranian, and Mathias 2002: 6; Smith v. US Cas. Col. 1910: 948). Michael Adams has put it

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more starkly: “The power to name and to name so as to diminish, to frame the named as subordinate to the executive and thus to the state, is not a self-sufficient power, but is one among many potentially useful instruments of power exercised from a unitary position” (Adams 2008: 214; Alonso-Yoder 2022). The naming of enslaved individuals by enslavers as a tool of dehumanization has been well documented, as is the historical assignment of new surnames to immigrants by immigration officials (Laversuch 2006; Petersen 2001). In more modern times, the government uses per­ sonal names not only to track individuals and verify identity but also in service of research, in which names are used as proxies for other char­ acteristics (Petersen 2001). Names can also serve as the basis for biased decision-making; in a well-known study, employers’ decisions as to which job applicants to interview turned on assumptions about the applicants’ race based on their name (Bertrand and Mullainathan 2004).6 Besides the instrumental function of allowing an individual to identify themselves and be identified by others, one’s choice of name for oneself or one’s child can be a deeply personal decision, tied in some instances to cultural or religious practices. Naming thus serves not only the denotative purpose of allowing us to refer to other individuals but expressive and associative func­ tions as well, sometimes connected to the sound or meaning of the chosen lex­ ical unit (Palsson 2014; Heymann 2011). Unlike some other countries, the United States does not control individual naming choices at the national or state level through an official list of “acceptable” names. It has long been a feature of the common law that an individual can effectuate a naming choice simply by using the name in engaging with others (assuming others respond by also using it) (In re Bacharach 2001; Baker and Green 2021). For those who seek official recog­ nition of a name change from the state courts in the state where they are domiciled, the beliefs of the judge or judges hearing the petition as to what constitutes an appropriate name may control any particular case.7 Outside of the judicial process, because it is nearly impossible to function in modern daily life without some form of governmental identification, the require­ ments for obtaining that identification, at either the national or state level, also function in some sense as a regulation of naming choices (Leone 2010).8 In some instances, regulations that limit the nature of names that can be included in an application are explicitly part of state statutes or are a func­ tion of information provided to individuals on governmental websites. The Minnesota Department of Health, for example, states in its “Instructions to Register Your Child’s Birth” (as of this writing) that names submitted for a birth certificate may include no more than three words (a first, middle, and last name); may include no more than 50 characters for each of the three names; and may include only “letters from the Modern English alphabet”, with spaces, apostrophes, and hyphens being the only additional elements permitted (Minnesota Department of Health 2020). Despite these restric­ tions, the document advises applicants that they can “[g]ive your child any

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name you choose” and instructs applicants to “[p]rovide accurate informa­ tion”, both of which the aforementioned limitations may prevent. By contrast, Texas amended its vital statistics statutory scheme and its transportation code in 2017 to require diacritics to be properly recorded in vital records and on driver’s licenses.9 Naming choices can also be de facto regulated by the types of names that a state form will accept, becoming known to individuals only when they unsuccessfully attempt to enter their true name on the form or, perhaps, from knowledge gained from the Internet or other sources but without any official pronouncement. Larson (2011: 168–169), for example, cites “rules” from several states about acceptable name submissions that he was able to obtain in 2011 only by communicating directly with representatives in state vital records departments. In some earlier judicial challenges, the government claimed that changing its systems to recognize a petitioner’s chosen name would cause an undue administrative burden, related either to the system itself or to the need for the system to interact with other systems. In a 1984 California case, In re Ritchie, the petitioner requested court approval to change his name to the Roman numeral III. The California Court of Appeal affirmed the trial court’s denial of the petition, finding that the trial court correctly concluded that a Roman numeral did not constitute a name, since names are words, and “it is common knowledge that words do not consist solely of numbers or symbols” (In re Ritchie: 241). The appeals court also credited the trial court’s view that a name that consisted of a number “might cause inherent confusion in public records”, particularly given the use of computer processing, “which, in turn, may well facilitate deception or fraud of individuals, institu­ tions or the public as a whole” (241). Likewise, in In re Miller, a 1994 New York case, the court rejected the petitioner’s request for official recognition of a single name, noting, The use of a single name cannot be viewed as reasonable when it would create confusion in identifying different people, cause disruption of official and business records (e.g., driver’s licenses, voter registration, banking records), and wreak havoc in an economy that is largely dependent on credit of easily identifiable persons. (In re Miller 1994: 1025; internal quotation marks omitted) In neither case was the claim of administrative inconvenience explored as an evidentiary matter, suggesting that the courts may have been using that jus­ tification to support a more general preconception as to what constitutes an appropriate name in the English language. As I have suggested in previous work (Heymann 2011), US courts seem to have had greater concerns about name changes and adminis­ trative convenience when the petitioner was an incarcerated individual seeking to change their name for religious reasons. For example, in In

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re Brast, a 1974 Connecticut case, the court denied a petition by an indi­ vidual who wanted to change his name from Bruce Alexander Brast to Abdullah Al-Badri Ben Alexander Brast, taking judicial notice that “today’s living, with the increase of population density and control, demands a name which conveniently may be used on standard forms and records” (In re Brast 1974: 484).10 Whether these concerns relate to perceptions that the religious beliefs may not be sincerely held, perceptions that incarcerated individuals are less deserving of the ability to choose their own names, or something else cannot be conclusively determined, but there would seem to be no reason why such claims should be evaluated any differently from those involving nonincarcerated individuals. Additionally, one might conclude that claims of administrative convenience should be less tenable today, given advances in technology. In Application of Ferner, a 1996 New Jersey case, the court rejected administrative concerns as a basis for denying the applicant the ability to officially change her name to the single name of Koriander. As the court noted, “[t]oday’s society does not use only names as a means of identification”, given that individuals sometimes use alternative names or share a name with many other individuals. “[A] single name may cause some inconvenience to government agencies, in particular to their computer record keeping and indexing systems”, the court continued. “Computers and record keepers, however, need not control individual liberties” (Application of Ferner 1996: 82–83). In other cases, moreover, courts seem to have evolved in their understanding of the possible elements of a personal name. In Bean v. Superior Ct, a 2006 (unreported) decision from California, the appellate court reversed the lower court’s denial of the petitioner’s request to change their surname from Bean to Bean!. While the lower court had conveyed that the common understanding was that a name consisted only of letters, the appellate court noted that it is not unusual for surnames to contain punctuation marks, such as apostrophes. (The court did suggest, however, that the con­ sideration might have been different had the petitioner been attempting to change his name to a number or a symbol.)11 Restrictions on naming do not, however, come only in the context of name change petitions, where the government’s claims of administrative burden can be tested (and sometimes accepted, as in Dana Zzyym’s case). As noted above, California state law has prohibited the use of diacritics in vital records, such as birth certificates, since 1986. A 2017 statutory amendment that would have reversed this policy was vetoed by (then) Governor Jerry Brown, who noted the following in his veto message: Mandating the use of diacritical marks on certain state and local vital records without a corresponding requirement for all state and federal government records is a difficult and expensive proposition. This bill would create inconsistencies in vital records and require significant state funds to replace or modify existing registration systems. (AB-82 2017–2018)

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As a result, many who wish to register their own or their child’s true name in California are thwarted at the submission stage, with the claim of administrative necessity never subject to judicial review.12

Designing Forms The recognition that it is important for designers of interactive commu­ nications to take diacritics and other language concerns into account is not a new one. As Mark D. Larsen wrote in 1996: For good or evil, and whether for academic, political, economic, or cultural reasons, the dawn of the information age shed its first light over countries where English was the predominant language. As an unfortu­ nate consequence, the engineers and programmers who established the “standards” for the emerging technology failed to recognize that the 26 letters of the English alphabet, plus a limited number of punctuation marks, mathematical symbols, and control characters, would hardly suffice to meet the needs of users around the globe. (Larsen 1996: 205) The W3C Internationalization Working Group, to take another example, has offered advice since at least 2011 on considerations when designing webbased forms and databases (2011; McKenzie 2010), including attention to diacritics and spaces in names, as well as noting naming practices in differ­ ent areas of the world. Claims that only certain names, or certain types of names, can be entered into a government form assume that there are limited options for form design, or that systems can be updated only at tremendous cost and with significant effort. While the reasonableness of this assumption depends on the circumstances, there is, of course, no obvious presentation that any particular form field must take, and so consideration should be given to inclusiveness ex ante. A form asking for an individual’s name could be divided into separate fields for given names and family names or could have a single field for one’s full name. An online form could be limited in the number or types of characters it can accept or have few or no limitations. The key is determining how to make the form, and any system or database with which it is used, work together. Indeed, where the data from a gov­ ernment form doesn’t feed directly into a database, but instead must be manually entered at a later point, there would seem to be no reason for a form to contain separate name fields, as Utah’s petition for name changes does (as of this writing) for both the petitioner’s existing name and the desired name. (By contrast, New York’s name change petition has a single field for the entire name.) There have been many examples in the popular press of how certain names can “break” forms in a digital environment. Among the most famous

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is the experience of individuals with the surname Null, who have described how some computer systems will not recognize Null as a surname because “null” is also the word used to indicate that a field contains no data (Bar­ aniuk 2016; Null 2015). In other words, as one writer has described it, “if lastname = null, then … well, then try again with a lastname that isn’t ‘null’” (Null 2015). That writer went on to describe various workarounds he would deploy, including entering a combination of his middle name and surname in the surname field or adding a period to his surname. In 2013, news outlets reported the ordeal of Janice Keihanaikukauakahihulihe‘eka­ haunaele, whose entire family name (including the okina, the diacritic representing a glottal stop) would not fit on her driver’s license until Hawaiian state computer systems were upgraded to allow for longer names (BBC 2013). The New York Times reported in 2009 that the computers for China’s Public Security Bureau were capable of recognizing only 32,252 of the approximately 55,000 existing Chinese characters, which meant that individuals with one or more of the remaining 22,748 characters in their names were unable to obtain a government identity card (LaFraniere 2009). Many online commentators have recounted their experiences with online forms that return an error message informing the individual that their name is too short, thus preventing individuals with names such as Yu or Kim from successfully (and accurately) completing the form (Chung 2022). Users thus sometimes employ inaccurate workarounds. Aimee Gonzalez-Cameron notes, for example, that users of forms in Spain, where it is common to have two family names, sometimes duplicate the surname of an individual with only one family name so that all fields are filled in (2015). Such problems in form design occur when developers either have not recognized or have not designed to anticipate “edge cases” and “corner cases”. An “edge case” occurs when the rules of the system are tested beyond the anticipated boundaries. For example, a form that is designed with the assumption that surnames are not longer than 20 characters might ultimately accommodate many surnames in the United States, but a longer surname will become an edge case that will cause a system error. The designer will then have to respond to that error either by redesigning the form to accommodate longer names or by imposing character limits that prevent the system error from occurring (but force individuals with longer names to truncate or abbreviate, and so falsely represent, their names). A “corner case” involves a testing of the system in an unanticipated way.13 For example, a form designer might set no character limits for the “first name” and “last name” fields but might not consider that for some indivi­ duals, such as those from some Asian countries, the family name comes before the individual name, or that in some naming traditions, the family name consists of two or more words separated by spaces, not joined by hyphens. Here, the form “breaks”, not because the limits of a particular field are tested but because the user activity was of a kind that was unanticipated.14

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Apart from the nature of the spaces for data entry, the description or title of the form fields also has expressive effects. One way in which this occurs is with respect to gender identity. For example, as discussed above regarding Dana Zzyym’s case, a form that offers only binary male/female options in a “sex” field is communicating the form owner’s limited recognition of the range of individuals’ gender identities. A form that asks for an individual’s “maiden name” communicates that some individuals—those who identify as female—are presumed to adopt a different surname after marriage. Form designers likely wouldn’t use that phrase to capture the prior name of an individual who identifies as male and who changed their surname after marriage (Verhovek 1995). Similarly, forms can subtly suggest the choices that individuals should make in considering whether to change their names. Forms for those seeking to petition a court for official recognition of a name change that have separate fields for first, middle, and last names may cause petitioners to think that they must include all three or risk having their petition denied. Elizabeth Emens documented in 2007 (before the US Supreme Court ruled in Obergefell v. Hodges (2015) that the fundamental right to marry extended to same-sex couples) that 25 states with forms that were consistent throughout the state “ask[ed] for the bride’s and groom’s information in nonidentical ways”, such as by asking for the woman’s “maiden name” but not asking for the birth name of the man, thus suggesting that the woman would be changing her name (Emens 2007: 846). In the same study, Emens (2007) noted that multiple state forms asked for the names of the parents of each individual by asking for the mother’s “maiden name” and the father’s “name”. In addition, as John Graham-Cumming has written (2010), form designers should pay attention to the error messages that forms give in response to entries that are rejected. An error message that an entry “contains invalid characters”, is “too short”, or “must be at least four characters” might suggest that the fault is with the individual’s name and not with the form. This is not to ignore the fact that forms do not exist in a vacuum. The databases for which they serve to deliver input might be connected to requirements that would appear to dictate the nature of the form, such as the ability to interact with other databases or to allow for certain kinds of searches or sorting (Perlman 2019).15 (Of course, those operations are not always conducted for wholly positive reasons, such as when “mismatches” are used as a justification for purging individual names from voter registra­ tion rolls.) But any such decisions should be both intentional and made with full consideration of the implications of form design. In particular, decisionmakers should consider the ways in which form design choices can have the effect of instantiating naming policy and, even more important, the dis­ tributive effects (and dignitary harms) such choices can cause, particularly with respect to members of underrepresented communities. Where changes to form design are not forthcoming, guidance on how to use existing sys­ tems to register names correctly can also further equity. Jason Motamedi,

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Zafreen Jaffery, Allyson Hagen, and Sun Young Yoon (2017: 1), for example, note that when non-English student names are recorded incorrectly in school databases, “students who are eligible for services (e.g., English learner support) can be unidentified or overlooked”; the authors’ reference guide, designed for teachers and school administrators, works to ameliorate this issue by providing naming conventions for 11 languages.

The Law of Forms Whether through inattention, deliberate disregard, or intention, form design can have the effect of communicating what the form’s proponents believe to be an individual’s “correct” or “legal name”. Account maintenance systems that do not allow individuals to change their name, or that continue to link a name change to a previous name, can operate as a form of deadnaming for transgender individuals,16 and forms designed with the perspective of only some identity groups in mind operate as a judgment (effectuated through design) of what names are acceptable and which are not (Kim 2021). Likewise, the lim­ itation on characters or on diacritics described above creates a dissonance between the name that has been given to a child or chosen in a name change petition and the name that is officially recorded by the government, with a particular effect on individuals from underrepresented communities. In some instances, form design can be used as a way of effectuating policy sub rosa, such as in the immigration space. For example, in late 2019, the US Citizen and Immigration Services changed its policy to note that an individual’s Petition for U Nonimmigrant Status and related forms would be rejected if a field was left blank, “unless the field is optional”.17 The “middle name” field on the petition was not designated as optional; thus, a petitioner without a middle name could not, at that time, simply leave that field blank but had to include text such as “none”, “unknown”, or “n/a”, or risk having their petition rejec­ ted. This, as immigration attorney Jessica Farb suggested, caused problems even for those individuals fortunate enough to be alerted to the requirement, since it might have resulted in “hundreds of people processed under the Trump administration who will legally have the middle name ‘N/A’” (Rampell 2020). (The agency rescinded the policy in December 2020 and later agreed, as part of the settlement of class action litigation, to allow affected individuals a year to resubmit documentation.) A similar issue arose for some new arrivals to the United States, including those from Afghanistan, who had only one name pursuant to the customs in their birth countries. As the Wall Street Journal described in 2016, US immigration officials typically entered the individual’s single name as their surname and entered FNU, for “First Name Unknown” as the individual’s first name. For many such individuals, that entry was then propagated across driver’s licenses, Social Security cards, and other documents—a result that immigration experts suggested was likely true of tens of thousands of mononymous individuals (Jordan 2016). Yet despite the dignitary affront

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that this name bestowal likely caused, the US State Department asserted in 2016 that, although it was aware that naming conventions differed in Afghanistan, accommodating those conventions would run contrary to the government’s goal of “[e]nsuring that names are entered consistently … for the security checks against various databases” (Kriel 2016). The fact that the name in the US government’s databases would not match the name on an individual’s Afghan passport, is, of course, a significant inconsistency, sug­ gesting that only some consistency was important to the government, and that consistency was more important than accuracy. While it is true that such an individual could later submit a name change petition to choose a given name, correcting the official records through a subsequent proceeding requires additional expense and interaction with the judicial process, both burdens on an already vulnerable population.

Conclusion Naming law is not simply a matter of official statutes and the decisions handed down by courts. Form design can be law design; recognizing this means interrogating up front the purpose of the form, the perspective of the form’s proponent, and whether consideration of additional perspectives and experiences would make “form design law” more inclusive. When forms are designed based on assumptions aligned with majority populations, accep­ table submissions using those forms ultimately will reflect conformity with those assumptions rather than accuracy. Administrative concerns, such as those relating to data analysis and database interactivity, should not be dis­ missed lightly, but overreliance on such justifications means that the law of forms will be shaped by the most rudimentary system in the network. As Aimee Gonzalez-Cameron has suggested (2015), we should think of a form not as a disconnected request for information but instead as a participant in a dialogue, where the “Name” field is more properly conceptualized as asking the question, “What’s your name?” or, “How would you like us/this document to refer to you?” To be sure, a holistic consideration of how we identify ourselves, and how governments can and should identify us, requires thinking about more than form design. Forms and other means of documentation, however, are an important place to start. A more inclusive approach toward documenting naming choices, and toward whether indi­ vidual’s true names get accurately reflected in official records, should be the goal moving forward. Forms should adapt to people, not the other way around.

Notes 1 Zzyym’s state driver’s license once indicated that their sex was female, but Zzyym later obtained a license with an “X” designation. They had changed their name to Dana Alix Zzyym in 1995.

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2 See also Citron (2008: 1263) (describing “street-level” policy-making that is not subject to more formal rulemaking procedures). 3 Professor Ko detailed the hours spent updating various governmental and business databases with a new name, noting that several websites “had no web interface for changing it, no customer service contact information for changing it. My deadname will apparently live in their databases forever”. 4 Courts have also recognized the legal significance of names as contained in government documentation. See In re Childers-Gray (2021: 107) (noting that “information contained in a government-issued identification document—name, sex, date of birth, permanent address—has legal significance”); In re Name Change of Resnover (2012: 674) (“Without a valid driver’s license or identity card even the most daily tasks present an insurmountable burden: [individuals] cannot purchase certain over-the-counter allergy medicine that contains ephedrine or pseudoephedrine, purchase alcohol or tobacco, they cannot enter federal facilities or board a commercial airplane, and cannot receive free assistance with their income taxes”.). 5 Some material in this section is derived from Heymann (2011). Additional legal scholarship on personal naming, focusing on constitutional law, includes Kushner (2009) and Larsen (2011). 6 Harari and McDavid (1973) had previously studied teachers’ evaluation of student writing and stereotypes based on students’ names. 7 Many court decisions involved incarcerated or formerly incarcerated individuals, some of whom sought to change their names for asserted religious reasons. See, e.g., Matter of Larson (2019: *2) (affirming the lower court’s denial of a petition to change name to “Better Off Dead”, concluding in part that “[b]ecause ‘Better Off Dead’ is an idiom and contains no pronouns, it is an inherently misleading name”). Naming cases are also not infrequently litigated by pro se petitioners, which can affect the way in which the issues in the case are presented. See, e.g., Matter of Yates (2022: 197) (affirming the lower court’s denial of petitions to change names “from all capital letter to initial capital letters to initial capital letters followed by lowercase letters”, concluding that petitioners “offered no authority or reasoned argument that there is any legal significance to the capita­ lization of their names”). 8 Candeub (2016: 467) contends that individuals should have, in certain circum­ stances “the ability to demand a government-issued identification under a common law pseudonym”. 9 Such practices are not limited to government forms. As of this writing, Facebook’s name policy bars “symbols, numbers, unusual capitalization, repeating characters or punctuation”. The policy also notes both that the name on a profile “should be the name that friends call you in everyday life” and that the name “should also appear on an ID or document from our ID list” (Facebook 2023). 10 See also, e.g., Brown v. Wyrick (1981: 679) (“The desire of petitioners to change their names, however well motivated, must yield to the harm which the evidence bears out would be inflicted on the Missouri State Penitentiary if they were per­ mitted to change their names while still members of the prison population”.); In re Rouson (1983: 155) (denying petition of inmate to change his name because, among other reasons, “the granting of a name change to a convicted felon now serving an indeterminate sentence of imprisonment would result in confusion and create record keeping problems” for correctional facilities). 11 The petitioner is, as of this writing, an attorney whose surname is reflected in the membership records of the State Bar of California as “Bean!” Notably, this also means that, as of this writing, California permits names to contain exclamation points but not diacritics.

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12 Issues can also arise with forms and what is deemed a “legitimate” name in instances other than individual name change petitions. One example is Johnsrud Transport, Inc. v. McDonald’s Restaurants of Kansas, Inc. (2019), where a party’s electronic court filing was (unsuccessfully) challenged by the other party as filed too late; the filing had been rejected because it contained “unacceptable” (although correct) punctuation in the party’s names. The court held that the filing should be deemed timely because the filing party “insert[ed] the party names exactly how they were legally named, as the rules appear to require”. 13 I should note that in some design communities, “edge case” and “corner case” are used interchangeably to refer to any user activity that “breaks” the design. 14 Programmers are undoubtedly familiar with the xkcd comic about “Little Bobby Tables”. See: https://xkcd.com/327/. 15 Perlman (2019) notes that the Associated Press had formerly “advised against transmitting any accents” because news organizations “have different computer systems to receive AP copy” and so “the material transmitted by the AP must be digestible by all”, but changed its policy in 2019 to allow “accent marks or other diacritical marks with names of people who request them or are widely known to use them, or if quoting directly in a language that uses them”. 16 To deadname a transgender individual is to address them or speak about them using the name that they were given at birth but no longer use. 17 The U Nonimmigrant Status (U visa) “is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or govern­ ment officials in the investigation or prosecution of criminal activity”. US Citizenship and Immigration Services, Victims of Criminal Activity: U Nonimmigrant Status.

References Adams, Michael. 2008. “Nicknames, Interpellation, and Dubya’s Theory of the State.” Names: A Journal of Onomastics 56, no. 4: 206–220. doi:10.1179/ 175622708X381442. Alford, Richard D. 1987. Naming and Identity: A Cross-Cultural Study of Personal Naming Practices. New Haven: HRAF Press. Alonso-Yoder, Cori. 2022. “Making a Name for Themselves.” Rutgers University Law Review 74, no. 3: 911–971. American Immigration Lawyers Association. 2021. “USCIS’s Blank Space Policy.” https://www.aila.org/infonet/featured-issue-usciss-blank-space-policy. Application of Ferner. 685 A.2d 78 (N. J. Super. 1996). Baker, Austin A. and J. Remy Green. 2021. “There Is No Such Thing as a ‘Legal Name’.” Columbia Human Rights Law Review 53, no. 1: 129–188. Baraniuk, Chris. 2016, March 25. “These Unlucky People Have Names that Break Computers.” BBC. https://www.bbc.com/future/article/20160325-the-names-tha t-break-computer-systems. BBC. 2013, Sept. 15. “Long-Named US Woman Celebrates Government Climb-Down.” BBC. https://www.bbc.com/news/world-us-canada-24097775. Bean v. Superior Ct.. No. D048645, 2006 WL 342500 (Cal. Ct. App. Nov. 28, 2006) (unreported). Bertrand, Marianne and Sendhil Mullainathan. 2004. “Are Emily and Greg More Employable than Lakisha and Jamal?: A Field Experiment on Labor Market Dis­ crimination.” American Economics Review 94: 991–1013. doi:10.3386/w9873. Bill information, AB-82 (Vital records: diacritical marks). 2017–2018. https://leginfo. legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=201720180AB82.

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Brown v. Wyrick, 626 S.W.2d 674 (Mo. Ct. App. 1981). Bucholz, Mary. 2016. “On Being Called Out of One’s Name: Indexical Bleaching as a Technique of Deracialization.” In Raciolinguistics: How Language Shapes Our Ideas About Race. Edited by H. Samy Alim, John R. Rickford, and Arnetha F. Ball, 273–289. Oxford: Oxford University Press. Candeub, Adam. 2016. “Privacy and Common Law Names: Sand in the Gears of Identification.” Florida Law Review 68, no. 2: 467–518. Chung, Kim. 2022. “Bad Form Design: ‘First Name Must Be at Least 4 Characters’.” Medium, https://medium.com/ux-school/bad-form-design-first-name-must-be-at-lea st-4-characters-c882a9c3407f. Citron, Danielle Keats. 2008. “Technological Due Process.” Washington University Law Review 85, no. 6: 1249–1313. Clarke, Jessica A. 2019. “They, Them, and Theirs.” Harvard Law Review 132: 894– 991. D’Ammassa, Algernon. 2019, July 12. “Computer Networks Slowly Warming Up to Non-Anglo Names and Accent Marks.” Las Cruces Sun News. https://www.lcsun­ news.com/story/opinion/columnists/2019/07/12/computer-networks-warming-up-non-a nglo-names-and-accent-marks-internationalization-diacritics/1706262001/. Emens, Elizabeth F. 2007. “Changing Name Changing: Framing Rules and the Future of Marital Names.” University of Chicago Law Review 74: 761–863. Facebook. “Names Allowed on Facebook.” Accessed July 8, 2023. https://www.fa cebook.com/help/112146705538576. Freedberg, Louis. 2002, Oct. 7. “Claim Your Name.” S.F. Chron. https://www.sfgate. com/opinion/article/PERSONAL-PERSPECTIVE-Claim-your-name-2764520.php. Gonzalez-Cameron, Aimee. 2015, September 8. “Hello, My Name Is .” A List Apart. https://alistapart.com/article/hello-my-name-is-error/. Graham-Cumming, John. 2010, June 17. “Your Last Name Contains Invalid Characters.” https://blog.jgc.org/2010/06/your-last-name-contains-invalid.html. Harari, Herbert and John W. McDavid. 1973. “Name Stereotypes and Teachers’ Expec­ tations.” Journal of Educational Psychology 65, no. 2: 222–225. doi:10.1037/h0034978. Hauser, Christine. 2021, October 27. “U.S. Issues First Passport with ‘X’ Gender Marker.” New York Times. https://www.nytimes.com/2021/10/27/us/us-first-passp ort-gender-x.html. Heymann, Laura A. 2011. “Naming, Identity, and Trademark Law.” Indiana Law Journal 86: 381–446. In re Bacharach, 780 A.2d 579 (N.J. Super Ct. App. Div. 2001). In re Brast, 334 A.2d 483 (Conn Super. Ct. 1974). In re Childers-Gray, 487 P.3d 96 (Utah 2021). In re Miller, 617 N.Y.S.2d 1024 (N.Y. Civ. Ct. 1994). In re Name Change of Resnover, 979 N.E.2d 668 (Ind. Ct. App. 2012). In re Ritchie, 206 Cal. Rptr. 239 (Ct. App. 1984). In re Rouson, 465 N.Y.S.2d 155 (Co. Ct. 1983). Johnsrud Transport, Inc. v. McDonald’s Restaurants of Kansas, Inc., 446 P.3d 1116 (Table), 2019 WL 3980789 (Kan. Ct. App. Aug. 23, 2019). Jordan, Miriam. 2016, March 21. “How Do You Do, FNU?: Some in U.S. Handle Just One Name.” Wall Street Journal. https://www-wsj-com.proxy.wm.edu/arti cles/how-do-you-do-fnu-some-in-u-s-handle-just-one-name-1458594616. Kim, Michelle Mi Jung. 2021, March 19. Twitter, @mjmichellekim, https://twitter. com/mjmichellekim/status/1372996271770800130.

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Ko, Amy J. 2019, Oct. 20. “100 Hours of Name Change Labor.” Medium. https://m edium.com/bits-and-behavior/100-hours-of-name-change-labor-c652c22a89b9. Kriel, Lomi. 2016, March 10. “‘FNU’ Has Afghan Allies Now in U.S. Stuck in Name Limbo.” Houston Chronicle. https://www.houstonchronicle.com/news/local/a rticle/FNU-has-Afghan-allies-now-in-U-S-stuck-in-6881252.php. Kushner, Julia Shear. 2009. “The Right to Control One’s Name.” University of California Law Review 57: 313–364. LaFraniere, Sharon. 2009. “Name Not on Our List? Change It, China Says.” New York Times. https://www.nytimes.com/2009/04/21/world/asia/21china.html. Larsen, Mark D. 1996. “Internet with an Accent: Toward a Standardization of Dia­ critics.” In Telecollaboration in Foreign Language Learning: Proceedings of the Hawai’i Symposium. Edited by Mark Warschauer, 205–218. Honolulu: National Foreign Language Resource Center. Larson, Carlton F. W. 2011. “Naming Baby: The Constitutional Dimensions of Parental Naming Rights.” George Washington Law Review 80: 159–201. Laversuch, I. M. 2006. “Runaway Slave Names Recaptured: An Investigation of the Personal First Names of Fugitive Slaves Advertised in the Virginia Gazette Between 1736 and 1776.” Names: A Journal of Onomastics 54, no. 4: 331–362. https://doi.org/10.1179/nam.2006.54.4.331. Leone v. Commissioner, 933 N.E.2d 124 (Ind. 2010). Matter of Larson, No. A18–2153, 2019 WL 7286959 (Minn. Ct. App. 2019) (unpublished opinion). Matter of Yates, 969 N.W.2d 195 (N.D. 2022). McKenzie, Patrick. 2010, June 17. “Falsehoods Programmers Believe About Names.” Kalzumeus. https://www.kalzumeus.com/2010/06/17/falsehoods-programmers-belie ve-about-names/. Minnesota Department of Health. 2020, May. “Instructions to Register Your Child’s Birth.” https://www.health.state.mn.us/people/vitalrecords/birthreg/docs/instrucm omsht.pdf. Accessed July 8, 2023 Motamedi, Jason, Zafreen Jaffery, Allyson Hagen, and Sun Young Yoon. 2017. Getting It Right: Reference Guides for Registering Students with Non-English Names, 2nd ed., REL 2016–2158 v.2. Washington, DC: US Department of Education, Institute of Education Sciences, National Center for Education Evaluation and Regional Assistance, Regional Education Laboratory Northwest. New York Times. 1991, August 28. “Why, O Why, Doesn’t That Name Compute?” http s://www.nytimes.com/1991/08/28/us/why-o-why-doesn-t-that-name-compute.html. Null, Christopher. 2015, November 5. “Hello. I’m Mr. Null: My Name Makes Me Invisible to Computers.” Wired. https://www.wired.com/2015/11/null/. Obasi, Sharon, Richard Mocarski, Natalie Holt, Debra A. Hope, and Nathan Woodruff. 2019. “Renaming Me: Assessing the Influence of Gender Identity on Name Selection.” Names: A Journal of Onomastics 67: 199–211. doi:10.1080/00277738.2018.1536188. Palsson, Gisli. 2014. “Personal Names: Embodiment, Differentiation, Exclusion, and Belonging.” Science, Technology, and Human Values 39, no. 4: 618–630. doi:10.1177/0162243913516808. Perlman, Merrill. 2019, April 8. “AP Updates Guidance on Mentions of Race, Accent Marks, and More.” Columbia Journalism Review. https://www.cjr.org/language_ corner/ap-race-accent-marks-sic.php. Petersen, William. 2001. “Surnames in US Population Records.” Population and Development Review 27, no. 2: 315–322.

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Rampell, Catherine. 2020, February 13. “This Latest Trick from the Trump Adminis­ tration Is One of the Most Despicable Yet.” Washington Post. https://www.wa shingtonpost.com/opinions/the-trump-administrations-kafkaesque-new-way-to-thwa rt-visa-applications/2020/02/13/190a3862-4ea3-11ea-bf44-f5043eb3918a_story.html. Rampell, Catherine. 2020, August 6. “The Trump Administration’s No-Blanks Policy Is the Latest Kafkaesque Plan Designed to Curb Immigration.” Washington Post. https:// www.washingtonpost.com/opinions/the-trump-administration-imposes-yet-another-ar bitrary-absurd-modification-to-the-immigration-system/2020/08/06/42de75ca-d811-11ea -930e-d88518c57dcc_story.html. Scott, James C., John Tehranian, and Jeremy Mathias. 2002. “The Production of Legal Identities Proper to States: The Case of the Permanent Family Surname.” Comparative Studies in Society and History 44, no. 1: 4–44. doi:10.1017/ S0010417502000026. Smith v. U.S. Cas. Col., 90 N.E. 947 (N.Y. 1910). Smith, Elsdon C. 1950. The Story of Our Names. New York: Harper. Spade, Dean. 2007. “Documenting Gender.” Hastings Law Journal 59: 731–841. Texas Health and Safety § 191.009 (vital records) (effective Sept. 1, 2017); Texas Transportation Transp. § 521.127 (driver’s license and personal identification cer­ tificate)(effective Sept. 1, 2017). US Citizenship and Immigration Services, n.d. “Victims of Criminal Activity: U Nonimmigrant Status.” Accessed September 19, 2020. https://www.uscis.gov/huma nitarian/victims-of-human-trafficking-and-other-crimes/victims-of-criminal-activity -u-nonimmigrant-status. US Department of State. 2022, June 28. “Personally Identifiable Information: Name Usage and Name Changes.” Foreign Affairs Manual. https://fam.state.gov/fam/ 08fam/08fam040301.html. US Department of State. 2021, June 30. “Proposing Changes to the Department’s Policies on Gender on U.S. Passports and Consular Reports of Birth Abroad.” https://www.sta te.gov/proposing-changes-to-the-departments-policies-on-gender-on-u-s-passports-and­ consular-reports-of-birth-abroad/. US Department of State. 2021, Oct. 27. “Issuance of the First U.S. Passport with an X Gender Marker.” https://www.state.gov/issuance-of-the-first-u-s-passport-with-a n-x-gender-marker/. Verhovek, Sam Howe. 1995, May 14. “About Men: My Maiden Name.” NY Times, Sec. 6, at 18. https://www.nytimes.com/1995/05/14/magazine/about-men-my-ma iden-name.html. W3C Internationalization Working Group. 2011, August 17. “Personal Names Around the World.” https://www.w3.org/International/questions/qa-personal-names. Zzyym v. Pompeo, 341 F. Supp. 3d 1248 (D. Colo. 2018), vacated and remanded, 958 F.3d 1014 (10th Cir. 2020). Zzyym v. Pompeo, 958 F.3d 1014 (10th Cir. 2020).

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Laws and Policies Regulating Personal Names and Transgender and Gender Diverse Identities in the US and Canada Sharon N. Obasi and I. M. Nick

Introduction Approximately 1.3 million residents over the age of 18 in the United States (Herman, Flores, and O’Neill 2022) and 100,815 residents over the age of 15 in Canada (Statistics Canada 2022) identify as transgender or gender diverse (TGD). TGD is a collective term that includes individuals whose gender iden­ tity and/or gender expression may differ from what is commonly associated with their officially assigned sex at birth (Coleman et al. 2022). Name, physical body, and gender expression are all integral to personal identity and self-per­ ception (Obasi et al. 2019; Pilcher 2016). Official identity, including nominal (name) identity and gender identity, however, goes beyond personal feelings, beliefs, and social expressions. Official identity relates to how a person may be legally acknowledged and recognized by entities outside of themselves such as healthcare organizations, educational institutions, housing authorities, work environments, and criminal justice systems. Therefore, for TGD adults, the regulation of official identity has real-world consequences and directly affects their equitable access to rights, responsibilities, protections, goods, and services (Loza et al. 2021; Singer 2020; Ryan 2018). Having gender-concordant identity documents (IDs) may also help to mitigate the physical and mental health concerns experienced by some TGD adults (Muzzey et al. 2022; Restar et al. 2020; Moody et al. 2015). TGD adults, like their non-TGD peers, report a variety of health and well-being concerns including anxiety, depression, stress, eating disorders, relationship issues, and substance abuse (Millet, Longworth, and Arcelus 2017; Levasseur 2015; Bockting et al. 2013). The rate of psychological distress and suicide among TGD adults, however, exceeds that of the general population (James et al. 2016). Recent research indicates that having gender-concordant IDs is associated with lower levels of anxiety, depression, suicidal ideation, and suicide attempts (Restar et al. 2020; Scheim, Perez-Brumer, and Bauer 2020; Singer 2020; Bauer et al. 2015). Gender-concordant IDs also reduce the vul­ nerability of TGD adults to harassment, discrimination, and even violence, thus serving as a protective mechanism (Loza et al. 2021; Maier 2020). For example, TGD adults with gender-concordant IDs have been found to DOI: 10.4324/9781003431510-4

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report greater success in securing employment and housing, and more posi­ tive interactions in healthcare settings (Loza et al. 2021; Hill et al. 2018). Thus, having gender-concordant IDs may support the physical and mental well-being of TGD adults. While the importance of gender-concordant IDs continues to be docu­ mented, comparatively few TGD adults in the US and Canada have such documents. According to the 2015 US Transgender Survey, only 11% of the 27,715 respondents had their chosen name(s) and preferred gender marker on all IDs, such as birth certificates, passports, student records, social security records, and driver’s licenses (James et al. 2016). Moreover, 68% of respon­ dents indicated that none of their IDs had their chosen name or preferred gender (James et al. 2016). In Canada, according to a recent report, only 5.9% of the non-binary adult survey respondents had identification with their pre­ ferred gender (Trans PULSE 2020). Approximately 22.4% of respondents had their correct gender on some IDs, while most respondents had IDs that did not (Trans PULSE 2020). The ability to have gender-concordant IDs is predicated on several factors including the jurisdiction-dependent legal understanding of gender identity and the resources (e.g., time, money) needed to meet specific policy requirements to qualify for name and/or gender marker changes. This chapter provides an overview of laws and policies in the US and Canada that regulate the ability of TGD adults to change their name(s) and/ or gender marker on government-issued IDs. Special focus is placed on the restrictions regulating the altering of official gender markers and personal names on legal birth certificates. It is important to discuss policies governing changes in gender and name together because oftentimes these alterations are temporally linked, occurring simultaneously, in quick succession, and/or contingently (Adams et al. 2020). The focus on birth certificates is explained by the fact that these documents are often the foundation for other IDs such as passports, driver’s licenses, and social security/social insurance records (Shteyler, Clarke and Adashi 2020). The chapter begins by offering working definitions for key terms related to gender identity and onomastics. It then provides an examination of similarities and differences in US and Canadian laws and policies at the federal, state, and/or provincial/territorial levels of governance. General regulations imposed on residents who petition to offi­ cially change their names and gender markers on their birth certificates will be presented and brief reviews of landmark legal cases will be given. The chapter concludes with a discussion of the importance of gender-concordant identification not only for promoting the well-being of individual TGD adults, but also for safeguarding their legal right to equitable access.

Key Terms and Definitions To ensure a common understanding of the concepts used in this chapter, this section gives working definitions for the key terms related to gender and names. Several gender-related terms employed in this chapter rely on

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definitions of the World Professional Association of Transgender Health (WPATH) Standards of Care, Version 8 (SOC-8) (Coleman et al. 2022). Since 1979, WPATH has utilized an inclusive, collaborative, community approach to articulate guidelines to facilitate gender-affirming physical and mental health-care of TGD persons. It must be noted, however, that many of the defined gender-related terms originated in biomedical discourse before being incorporated into legal and policy language (Kirkup 2018). As knowledge evolves, the acceptability of these terms and definitions by the TGD community may change. “Biological sex” or “sex assigned at birth” is determined by the anatomy of the body, especially the external genitalia, at birth (Coleman et al. 2022). “Gender” is a collective term that includes “understandings and expectations culturally tied to” biological sex (Coleman et al. 2022: S252). “Gender identity” refers to an individual’s psychological sense of gender that may or may not correspond to their biological sex (Coleman et al. 2022). Specific gender terms include TGD (previously defined); “gender nonconforming”; “nonbinary”, persons who identify as “outside of the gender binary”; and “cisgender”, persons whose gender identity and expressions are consistent with the sex assigned at birth (Coleman et al. 2022: S252). The term “gender expression” refers to how individuals present their gender, for example, through their preferred clothing, speech, and mannerisms (Coleman et al. 2022: S252). The expression “gender marker” refers to the official designa­ tion of a person’s social gender on IDs (Loza et al. 2021; Maier 2020); whereas “sex marker” is the designation of a person’s biological sex on IDs (Shteyler, Clarke and Adashi 2020). The legal definition and social understanding of “sex marker” and “gender marker” are critical factors in the articulation of the laws and policies regulating name and gender marker changes (e.g., Ray v. McCloud 2020). “Gender-affirmation” refers to acknowledgement and support of a person’s preferred gender identity and/or expression, such as the use of correct pronouns and chosen names (Knutson, Koch and Goldbach 2019; Sevelius 2013). “Gender affirming medical care” (GAMC) may include procedures such as hormonal treat­ ments, surgical reconstructions, hair removal, and speech and language counseling. The term “transsexual” is an increasingly outdated term that may appear in older legal discussions. It refers to TGD persons who either are in the process of changing or have changed their bodies, for example, through surgical intervention to align with their preferred gender identity (GLAAD n.d.). Regarding onomastics, “birth name” refers to personal name(s) officially given to a child at birth. By comparison, “chosen name” refers to the name (s) TGD adults may choose to use to affirm their gender identity (Obasi 2019). “Deadname”, a term created by the TGD community, refers to a birth name that is no longer used (Sinclair-Palm and Chokly 2022). “Dead­ naming” is the act of calling a TGD person by their original birth name if they have chosen to use a different name (Turton 2021; Meyer et al. 2020).

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To illustrate the use of these terms, consider the following example. A baby is given the assignment “male” at birth (birth/biological sex) based on anatomy and is given the name Charles (birth name) which is written on his legal birth certificate. However, Charles’s own psychological perception of self (gender identity) may be incongruent with the sex assigned at birth. To embrace the authenticity of this identity, Charles adopts the name Charli (chosen name), selects the designator “female”, and begins to wear clothing, display certain behaviors, and use pronouns to demonstrate herself (gender expression) that is consistent with and affirms their gender identity (e.g., transgender). To continue to refer to Charli by her birth name rather than her chosen name, against her wishes, is deadnaming. Gender-concordant IDs would list her chosen name and correct gender (i.e., Charli and “female”).

Demographic Information about TGD Adults in the US and Canada Using data from the Centers for Disease Control’s Behavioral Risk Factor Surveillance System (CDC/BRFSS) 2017–2020, the Williams Institute estimates that of the 1.3 million TGD adults aged 18 and older and living in the US, 515,200 (38.5%) are transgender women; 480,000 (35.9%) are transgender men; and 341,800 (25.6%) are gender nonconforming (gender diverse) (Herman, Flores, and O’Neill 2022). Although, according to the data, TGD adults resided in all 50 states and the District of Columbia, regional differences were observed. Approximately 328,500 TGD adults resided in the West; 231,200 lived in the Midwest; 523,600 in the South; and 253,800 in the Northeast (Herman, Flores, and O’Neill 2022). In 2021, Canada became one of the first countries in the world to docu­ ment information on gender diversity using a population census (Statistics Canada 2022). This data collection was facilitated by the inclusion of two specific census questions: “What is this person’s sex at birth?” and “What is this person’s gender?” Census results revealed that 100,815 Canadian resi­ dents over the age of 15 are TGD: 31,555 are transgender women; 27,905 are transgender men; and 41,355 are non-binary. TGD persons were found to reside in every province and territory in Canada. The majority, however, lived in the more populous areas such as Ontario (39,450 TGD persons), British Columbia (18,330 TGD persons), and Quebec (16,225 TGD persons) (Statistics Canada 2022). Collectively, the data gathered from the US and Canadian sources indicate that the number of TGD individuals residing in these two nations is far from small. This is especially true when one considers the fact that the official statistics do not include under-age persons and do not capture all those who preferred not to disclose their identities. Therefore, given the likelihood that a significant number of TGD adults living in Canada and the US may decide to seek gender-concordant IDs, it is necessary to understand the specific laws and policies that regulate gender marker and name changes in these two North American countries.

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US Federal and State Policies Regulations for Gender Declaration on Official IDs for TGD Adults In the US, there are no federal laws that regulate changes of gender markers on official identity documents (Maier 2020; Levasseur 2015). In recent years, however, there have been policy changes at specific federal agencies (e.g., US Department of State; Social Security Administration (SSA)) that make it easier for TGD adults to have their preferred gender designation on certain identity documents. For example, effective June 2021, US passport holders can self-select their gender marker designation as “M” or “F” without having to provide medical documentation (US Department of State 2021). In April 2022, this policy was extended to allow US citizens to select “X” as a gender marker for their passports (US Department of State 2022). In October 2022, the Social Security Administration (SSA) announced that US residents would be allowed to self-select either “male” or “female” on their SSA records without needing to provide medical or legal support for this change (Social Security Administration n.d.). Currently, the SSA has no policy that allows the use of a non-binary or unspecified sex designation such as “X”, but SSA officials indicate that they are examining ways to provide such options (Social Security Administration n.d.). Despite such noteworthy changes in agency policies at the federal level, at the state level the situation has remained comparatively protracted. To a certain extent, this difference may be due to the marked complexity involved in reg­ ulating changes of gender designations on state-issued identity documents, especially birth certificates (Maier 2020; Kirkup 2018; Spade 2008). Conse­ quently, according to the 2015 US Transgender Survey, only 9% of the respondents who desired a change of gender marker on their birth certificates had been able to do so (James et al. 2016). Research sources such as the Movement Advancement Project (MAP) (MAP 2023) and the Identity Docu­ ments Center of the National Center for Transgender Equality (NCTE) (NCTE 2023) provide up-to-date information about state procedures regarding gender marker changes. An examination of these regulations reveals consider­ able variation in states’ laws and policies in three notable areas: (1) whether changes in gender markers on birth certificates are allowed; (2) whether gender is recognized as binary only; and (3) whether proof of gender-affirming surgery is required for a change in gender marker on birth certificates. Based on these parameters, US state regulations range on a scale of gender affirmation from being restrictive to permissive. At the time of writing, Tennessee and Oklahoma had the most restrictive laws and policies regulating gender marker changes on birth certificates. Tennessee considers gender to be exclusively binary and only allows the designation “F” or “M”. It also does not permit a change in gender markers on birth certificates as articulated in the following legal code: “the sex of an individual shall not be changed on the original birth certificate as a result of

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sex change surgery” (Tenn. Code § 68-3-203(d)). Similarly, Oklahoma defines gender as a binary, and does not permit changes of gender markers on birth certificates. This restrictive policy was formally articulated via an executive order of the governor (Oklahoma Executive Order 2021–2024). Other states in the Union have comparatively less restrictive laws and policies (e.g., Alabama, Arizona, Arkansas, Georgia, Iowa, Kentucky, Louisiana, Missouri, Nebraska, New Hampshire, North Dakota, and Wisconsin). These states also legally define gender as binary, but they do allow changes to gender markers on birth certificates, contingent on proof of gender-affirming surgery (MAP 2023). To illustrate, in Alabama, the law has the following provision: [U]pon receipt of a certified copy of an order of a court of competent jurisdiction indicating that the sex of an individual born in this state has been changed by surgical procedure and that the name of the individual has been changed, the certificate of birth of the individual shall be amended as prescribed by rules to reflect the changes. (AL Code § 22-9A-19) Notably, the requirement of evidence of surgical intervention before any change can be made to a birth certificate is not only prohibitive in terms of time and money; it can be argued that this pre-requisite is also exclusionary for TGD adults who may not desire surgery. Other states such as Alaska, Delaware, Florida, Hawaii, Idaho, Kansas, Maryland, Massachusetts, Minnesota, North Carolina, Pennsylvania, Virginia, and West Virginia do not require evidence of gender-affirming surgery before changes can be made to the gender marker on birth certificates, although they also consider gender to be binary (MAP 2023). For example, in Delaware, a new birth certificate with an amended gender marker may be issued following the submission of several documents including the following: [A]n affidavit signed by a licensed medical or mental health professional […] who has treated or evaluated the registrant […] stating that the registrant has undergone surgical, hormonal, psychological or other treatment appropriate for the individual for the purpose of gender transition, based on contemporary medical standards […] and that in the provider’s professional opinion the individual’s sex as listed on the original birth certificate should be changed. (16 Del. Admin. Code § 4205–10.0) Although Delaware and the other 12 states listed above do not require surgical intervention for gender marker changes, in these jurisdictions, the requirement that TGD adults submit documentation from licensed medical or mental health professionals may still be discriminatory. TGD adults who have limited finan­ cial means may find it more difficult to satisfy this requirement than those who

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have greater economic flexibility. Finding gender-affirming healthcare profes­ sionals may also be differentially burdensome, depending on where one resides, for example, in a rural vs. an urban locality. Finally, gender-affirming jurisdictions with highly permissive statutes include California, Colorado, Connecticut, DC, Illinois, Maine, Michigan, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia. In these jurisdictions, proof of gender-affirming surgery is not required, and the designations “F”, “M”, and “X” are all permissible on official birth certificates (MAP 2023). To illustrate, in the District of Columbia, TGD adults may receive a birth certificate that reflects their correct gender designation by submitting certain documentation. The specific regulation is presented below: [A] statement, signed under oath or affirmation, by a licensed healthcare provider who has treated or evaluated the individual stating that the individual has undergone surgical, hormonal or other treatment appropriate for the individual for the purpose of gender transition based on contemporary medical standards … and that in the healthcare provider’s professional opinion the individual’s gender designation should be changed. (DC Code § 7-231.22) Providing petitioners with the opportunity to select “X” as a gender marker demonstrates a more inclusive approach in these jurisdictions. Presently, there are several states, including Indiana, Mississippi, Ohio, South Carolina, South Dakota, Texas, Utah, and Wyoming where there is a lack of clarity on policies regulating the ability to change gender markers on birth cer­ tificates (MAP 2023). This lack of clarity is due in part to ongoing litigation and/ or reversals of previous rulings. A compelling example is Ray v. McCloud, 2020 (first litigated as Ray et al. v. Himes et al. 2018), in which four TGD adults petitioned the state of Ohio to have their chosen gender markers on their birth certificates. The petitioners articulated the hardships they had been made to endure as a result of not having gender-concordant IDs. These assaults to their dignity included the involuntary disclosure of their transgender identity, har­ assment, and threats of violence. The petitioners also highlighted the incon­ sistency of Ohio’s policies by pointing out that changes in gender markers were allowed on driver’s licenses and state identification cards. Furthermore, prior to 2016, the state had permitted TGD persons to change their official gender mar­ kers on birth certificates, but this policy was reversed without explanation. Based on this evidence, the petitioners argued that Ohio’s current birth certifi­ cate policy discriminated against TGD persons, and thereby failed to provide equal protection under the law. The defendant in Ray v. McCloud, the Ohio Department of Health, argued that a birth certificate is a historical record that documents an individual’s birth sex, and is not an instrument that declares gender identity. The defendant also made the following argument:

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In a summary judgment, the Court decided in favor of the petitioners, ruling that Ohio’s birth certificate policy was indeed both unconstitutional and discriminated against TGD adults by violating their right to privacy and diminishing their own understanding of who they are. Since that land­ mark decision, a gender marker on an Ohio birth certificate may be changed following approval of a probate in a manner consistent with other petitions for changes to birth certificates (Ohio Department of Health n.d.).

Regulations for Name Changes on Official IDs for TGD Adults For some TGD adults, choosing a new name and having that name on IDs is affirming (Loza et al. 2021; Wentling 2020). In the US, there is limited quanti­ tative research on the number of TGD adults who have legally changed their names. According to the 2015 US Transgender Survey, only 30% of the 27,715 respondents had legally changed their name(s) and 64% of the survey-takers had never tried to change their name(s). Amongst the reasons given for not pursuing a legal name change included not knowing that a name change was possible, being unfamiliar with the process of achieving a legal name change, and not knowing the cost associated with a name change (James et al. 2016). Analysis of data from the SSA shows that since the Agency’s inception in 1936, approximately 135,367 individuals have changed their name or gender marker in a way that suggests an accompanying change in gender identity (Harris 2015). This study examined records from the SSA’s Numerical Identification System which includes information on the first and middle names, sex, and date of birth for every US resident with a social security number. Changes in gender identity were inferred if there was a documented change in gender markers after the age of 16, as well as a change from a “strongly masculine” name to a “strongly feminine” one, or vice versa (Harris 2015). The “masculinity” or “femininity” of names was determined based on the frequency with which they had been given to boys or girls at birth (Barry and Harper 2010). While the use of these metrics for the analysis of SSA records provides a reasonable estimate of changes in names and gender markers, this method is not without its limits. The dataset, for example, omits several potentially important groups: (1) adults whose name changes do not involve highly gendered masculine or feminine names but rather gender neutral (unisex) names (e.g., Harper, Taylor, Lee); (2) adults who change their names via common law and not with the SSA; and (3) TGD adults who change their names but do not have a social security number, such as undocumented immigrants.

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In the US, there are no federal laws and policies that regulate name changes on official IDs. Instead, it is the purview of each state to devise and enforce regulations for their jurisdiction. A review of select landmark cases involving petitions for changes in personal names and/or gender markers on official IDs provides critical insights into the ways different state jurisdictions have con­ sidered gender identity. To illustrate, Matter of Anonymous v. Weiner, 1966, is one of the first cases in the US that centered on a TGD applicant’s request for an official change in the name and gender markers on their IDs. In this case, a transsexual woman petitioned the New York Supreme Court to change her original name and gender on her birth certificate following her “sex reassign­ ment surgery” (the language used in the case). After consultation with both the New York Board of Health and the Academy of Medicine, the Court denied the petition. In explanation of its ruling, the Court declared that “male to female transsexuals, while appearing female, are ‘chromosomally male’” (Matter of Anonymous v. Weiner 1966). Using this premise, the Court rea­ soned that the petition was to be denied as New York state law only permits birth certificates to be altered to correct an error. According to the ruling, the New York statutes do not allow changes “when there is a later attempt to change psychological orientation of the patient and including such surgery as goes with it” (Matter of Anonymous v. Weiner 1966). Approximately ten years later, another landmark ruling was made on the US West Coast in K. v. Health Division, Department of Human Resources, 1977. In 1975, the Oregonian lower court granted the petition of a “transsexual man” who had undergone “sex reassignment surgery” to have his name and gender officially changed on birth and school records. In that ruling, the court reasoned that “it is obvious that the purpose of a birth certificate is to accurately set forth the information which by law it is required to contain” (K. v. Health Division 1976: 4–5). However, two years later, the Oregon Supreme Court overturned this decision. According to the higher court, the statutes on which the lower court had based its ruling permitted the issuance of a new birth certificate only in the following three situations: (1) there has been a legal change in the name of the parents of a minor child; (2) the names of adopted parents are to be documented; or (3) the name (surname) of a child is changed when parents marry after their birth. Thus, the birth certificate is essentially a “historical record of the facts as they existed at the birth” of an individual and not as they currently exist (K. v. Health Division, Department of Human Resources, 1977). This reasoning established a significant barrier for TGD adults residing in Oregon to control their own onomastic identity. According to the Oregon Supreme Court, that power lay securely in the hands of the government. In contemporary legal discourse, the debate over whether it is the state or the individual who has the right to control an individual’s gender and ono­ mastic declarations on official documentation continues. To illustrate, in Re: Feldhaus, 2017, a transgender man petitioned the court to change his birth name to his chosen name to “live in accordance with his gender identity”

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(Re: Feldhaus 2017: 4) The judge presiding over the case declared dis­ approval of “the changing of names from male to female … and vice versa” and ultimately refused the petition based on the specific names (Rowan Elijah) chosen by the applicant (Re: Feldhaus, 2017: 5) The court argued that “name changes which allow a person to assume the role of a person of the opposite sex [sic] are in effect a type of fraud upon the gen­ eral public” and “offend the sensibilities and mores of a substantial portion of the citizens of this state” (Re: Feldhaus 2017: 6) The Georgia Court of Appeals reversed the decision of the lower court and allowed the peti­ tioner’s name change. In its decision, the court argued that the decision of the lower court had not been based on the law, but on the opinion of one judge (Re: Feldhaus 2017). These cases not only highlight the challenges faced by TGD adults trying to secure gender-concordant IDs. They also illustrate how little progress has been made in the legal understanding and recognition of gender. The sug­ gestion made in Re: Feldhaus, 2017, that a TGD person may be trying to defraud society by deceptively seeking to have their preferred name on their official ID is reminiscent of the decision rendered in Matter of Anonymous v. Weiner, 1966. Despite the fact that more than 50 years had passed, the position taken by the court was almost unchanged. These cases also invite us to reflect on the relevance of the types of information that are standardly documented on birth certificates and how it is controlled. To mitigate this governmental oversight, a proposal to alter the standard format of birth certificates was recently made (Shteyler, Clarke, and Adashi 2020). Accord­ ing to the authors, all that would be required would be moving birth sex information from “above the line”, where legally identifying information is typically documented (e.g., name, date of birth, place of birth), to “below the line”, with other information that is usually used for official statistical purposes (e.g., race/ethnicity of newborn, parental marital status). Such a reconfiguration may facilitate gender-marker changes later in life but it would do little to address the current difficulty TGD adults encounter when petitioning for an official name change. In the US, each state and the District of Columbia has specific laws and policies for regulating official name changes, irrespective of an applicant’s gender. However, certain requirements for name changes, such as the public announcement of an impending name change, may pose a unique danger to TGD persons by exposing them to harassment and violence (James et al. 2016). At the time of writing, in several states, before a name change can be approved, a public declaration of the petitioned name change(s) must be advertised in area newspapers. States with this pre-requisite include Georgia, Idaho, Indiana, Kentucky, Missouri, Nebraska, North Carolina, South Dakota, West Virginia, and Wyoming (MAP 2023). According to Missouri state law, for example, public notice of an official name change must be announced “at least three times in a newspaper published in the county” where the name-change petitioner resides (Mo. Ann. Stat. § 527.290). The

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only exemptions to Missouri’s publication requirement are for individuals who are documented victims of a violent crime such as child abuse or domestic abuse. No such allowance is made, however, for TGD adults who might become targets of abuse once their nominal and gender identities are made public. For TGD adults seeking a name change in Nebraska, this potential threat has been minimized. In Nebraska, any adult who wishes to change their name is also required to have a notice of their petition “pub­ lished in a newspaper in the county, and if no newspaper is printed in the county, then in a newspaper of general circulation therein … once a week for four consecutive weeks” (Neb. Rev. Stat. §§25-21,271). However, in marked contrast to Missouri, this publication requirement may be waived in Nebraska if petitioners can demonstrate that they would be “endangered” by the public notice (Neb. Rev. Stat. §§25-21,271 and 25-21,273). The value of such exemptions for TGD individuals cannot be overstated. Legal requirements to declare a name change publicly may not simply be prohibi­ tive with respect to the time and money involved in arranging such public announcements. They also effectively require the “outing” of individuals who may not wish to have their gender identity publicly announced for reasons of privacy or security. Not every jurisdiction requires the publication of a name-change announcement. No such requirement is necessary in Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Louisiana, Maine, Maryland, Minnesota, Mississippi, Nevada, New Jersey, New York, Oregon, South Carolina, Tennessee, Texas, Vermont, Virginia, Washing­ ton, and the District of Columbia (MAP 2023). In California, adults may request a name change to align with their gender identity by petitioning the court. This petition is “exempt from any requirement for publication” (CA Civ Pro Code § 1277.5). After a six-week waiting period, if there are no objections, the name change may be granted by the California court. Objections to the name change that are based solely on gender identity or sex assigned at birth are not considered by the court (CA Civ Pro Code § 1277.5). In comparison, states such as Alaska, Arizona, Hawaii, Illinois, Iowa, Kansas, Massachusetts, Michigan, Montana, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Utah, and Wisconsin vary with respect to requiring publication of an impending name change and the circumstances under which a name change may be granted. For example, in Alaska, anyone may petition for a name change but “a change of name of a person may not be made unless the court finds sufficient reasons for the change and also finds it consistent with the public interest. A change of name upon marriage, dissolution, or divorce meets these requirements” (AK Stat § 09.55.010). A petition placed before the court by a TGD adult may be considered. However, the request would only be granted if the court deemed the change to be in the public interest. The interest of the person seeking the name change would be considered immaterial.

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Canadian Federal, Provincial and Territorial Policies: Regulations for Gender Declaration and Name Changes on IDs for TGD Adults According to JusticeTrans, a Canadian gender-affirming legal resource, TGD adults in all Canadian provinces and territories can change their gender mar­ kers and/or names on IDs such as birth certificates (JusticeTrans 2023). This right is based in part on landmark legal cases such as XY v. Ontario, 2012, and CF v. Alberta (Vital Statistics), 2014. In XY v. Ontario 2012, the applicant “XY” was a transgender woman who had undergone gender-affirming surgery. She later applied for, and was granted, a change in the sex designation to cor­ rect the gender marker on her birth certificate. XY subsequently argued, how­ ever, that requiring transgender persons to undergo surgery as a condition of having their gender marker changed on their birth certificates was burden­ some and discriminatory. The respondent, the Office of the Registrar Gen­ eral of Ontario, argued that no discrimination had taken place since the applicant’s requested change in sex designation for her birth certificate had been granted, in accordance with the law. The court ruled, however, that the need to provide proof of “transsexual surgery” to receive a change in the gender marker designation on a birth certificate was “substantively dis­ criminatory because it perpetuates stereotypes about transgendered persons and their need to have surgery in order to live in accordance with their gender identity” (XY v. Ontario 2012). In CF v. Alberta, 2014, the applicant, “CF”, was a transgender woman who, as an adult, legally changed her birth name to her chosen name. She later applied for a birth certificate with her chosen name. The birth certificate was issued with her chosen name but with the original sex designation/gender marker. CF petitioned the court for a change in the sex designated on her birth certificate. Her petition was denied, however, because she had not undergone “sex reassignment surgery”, a legal requirement in Alberta for such an ID change. CF argued that she did not intend to have surgery and she was “perfectly content” with her physical body. In her application, CF argued that sex reassignment surgery should not be mandated to obtain a change in gender marker on a birth certificate as this requirement was discriminatory. She further argued that denying her request would force her to undergo con­ tinued hardships as a function of her gender-concordant IDs. The Alberta Department of Vital Statistics countered that far from being discriminatory, the surgical requirement afforded benefits to a “disadvantaged group”, that is, “transgender persons who have had genital surgery”. It also argued that the birth certificate is a historical record documenting a specific moment in time. The Alberta Court sided with CF and ruled that a birth certificate with the correct sex designation or gender marker should be given without the surgical requirement, as CF’s self-identification as a woman was genuine and sufficient (CF v. Alberta, 2014). Based on the ruling of these and other landmark cases, TGD adults in all Canadian provinces and territories, except Nunavut, are able to change their

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gender markers to “F”, “M” or “X” on their birth certificates without having undergone or planning to undergo gender affirmation surgery (JusticeTrans 2023). There are some jurisdictional differences, however, in how the law is applied. These differences are based on varying legal parameters, such as what age constitutes adulthood. TGD adults must be 19 or older in British Columbia and the Northwest Territories, 18 or older in Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, Saskatchewan, and 16 and older in New Brunswick, Newfoundland and Labrador (JusticeTrans 2023). There is also jurisdictional variation with regard to the length of residency requirements. For example, in Nova Scotia applicants must have been born in that province or have resided there for at least three months. In contrast, Prince Edward Island applicants must have been born in that province and have resided there for at least three months. In Alberta, British Columbia, Quebec, and the Yukon Territory, TGD adult applicants need only complete the change in gender des­ ignation form and submit the required fee to initiate the process. Finally, there is some variation in the specific documents that must be submitted for an offi­ cial petition. Manitoba, New Brunswick, Newfoundland, and Labrador require a statement of gender identity only. However, Ontario, Prince Edward Island, and Saskatchewan require applicants to submit a notarized statement of gender identity as well as a letter from a medical professional, usually a physi­ cian or a psychologist. By contrast, the Northwest Territories require a letter from an adult who has known the applicant for at least one year. That person need not, however, be a medical professional (JusticeTrans 2023). In every Canadian province and territory, TGD adults may obtain a legal name change, but there are, once again, jurisdiction-specific differences in the residency requirements. Alberta, Nunavut and Northwest Territories, for example, do not have residential requirements for name-change petitions (Jus­ ticeTrans 2023), while TGD adults must have resided for at least three months in the following provinces: British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, and Prince Edward Island (JusticeTrans 2023). Ontario and Quebec both require at least a year of residence before an application for a name change can be made. There are also important dif­ ferences in the required minimum age. One must be at least 18 years old in Ontario to make a name-change request, but in Quebec, any applicant who is 14 years old or older may file such a petition, with or without the permission of a parent or guardian (JusticeTrans 2023). There is also some variation in the Canadian laws where the public announcements are concerned. At the time of writing, Ontario and Saskatchewan both require the publication of an impend­ ing change in name. However, that requirement may be waived if applicants request an exemption. This loophole helps to ensure the privacy of applicants by preventing the publication of their deadnames and soon-to-be-officially-adopted chosen names (transSASK n.d.). Notably, in Nunavut, married adults aged 19 and older may request a legal name change but they must obtain either spousal consent or notify their spouse of their intent to apply for a name change if they are currently residing with their spouse (JusticeTrans 2023).

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Summary and Conclusion: The Importance of Gender Affirmation Through Identity Documents An onomastic investigation of name choice and renaming among TGD adults in the US revealed that most of the study participants used a name that differed from their birth name, even if they had not legally changed their name (Obasi et al. 2019). Strategies used to choose an alternative to their birth name included selecting the names of family members to honor them, and creating a variant of their original birth names (Obasi et al. 2019). Whatever the strategy chosen, for TGD persons, the act of re-naming themselves can be an important part of recognizing, expressing, and embra­ cing their gender identity (Steadman 2021; Obasi et al. 2019). The potential power of this onomastic act of self-affirmation is not to be underestimated when one considers the challenges TGD adults face. Empirical research indicates that TGD persons report higher levels of anxiety, depression, and suicide in comparison to the general population (e.g., James et al. 2016; Bocking et al. 2013). In addition, it has been found that TGD individuals routinely experience marginalization across various contexts including healthcare settings (e.g., Puckett et al. 2018; Bauer and Scheim 2015). Legal nominal and gender affirmation through gender-concordant IDs may serve as a protective factor for TGD persons by mitigating their physical, mental, and societal health concerns. Restar and colleagues (2020) observed that TGD adults who had changed their names and gender markers on their passports and driver’s licenses reported lower levels of anxiety, depression, and psychiatric distress in response to gender-based mistreatment. The protective factor of legal name change was also documented by Hill and colleagues (2018) who focused on the experiences of transwomen of color. In their study, they discovered that study participants who had legally changed their names were more often employed, with higher incomes and more stable housing, in com­ parison to transwomen who had not legally changed their names. Similar findings were reported in a 2015 study of Canadian transgender young adults, aged 16 or older. In that investigation, Bauer et al. (2015) observed a clear reduction in suicidal ideation and attempts among those who had at least one ID with a gender-concordant marker. Comparable observations were made in a study focusing on TGD adults in the US (Scheim et al. 2020). Despite the clear potential benefits of gender alignment in official IDs, not all TGD adults have such documentation due to external factors including an inability to afford the required fees; the fear of losing benefits or services following a change in legal identity; the absence of officially recognized gender options that would fit their identity; and simply not knowing that changes of names and gender markers on IDs were allowed (Scheim et al. 2020). The continued enforcement of laws and policies in the US and Canada which either completely prohibit adult TGD petitioners from changing their name(s) and gender marker on official documents, or impede TGD adults from obtaining such documentation by requiring them to out themselves in

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public spaces where they are vulnerable to discrimination, harassment, and violence, may be seen as institutionalized forms of gatekeeping, or “structural stigmatization” (Perez-Brumer et al. 2015). Such laws and policies negatively and unjustly impact the lives of TGD persons and their loved ones, leaving them vulnerable to the dangers of transphobia, and violate their right to equitable and fair treatment under the law. The expression of one’s nominal and gender identity are basic human rights which must be protected through the respectful and considerate develop­ ment, articulation, and implementation of legal policies everywhere (Yogyakarta Principles 2017).

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Movement Advancement Project. 2023. “Equality Maps: Identity Document Laws and Policies.” Accessed January 12, 2023. https://www.lgbtmap.org/equality-maps/ identity document laws. Muzzey, Finneran K., M. Killian Kinney, Megan K. Maas, and Heather L. McCauley. 2022. “Support Networks of Transmasculine and Nonbinary Young Adults During Chosen Name Transition.” Psychology & Sexuality 13, no. 3: 652–662, doi:10.1080/ 19419899.2021.1902379. National Center for Transgender Equality. n.d. “ID Documents Center.” Accessed January 15, 2023. https://transequality.org/documents. Nebraska Revised Statute §§25–21, 271, and 25–21, 273. Obasi, S. N., R. Mocarski, N. Holt, D. A. Hope, and N. Woodruff. 2019. “Renam­ ing Me: Assessing the Influence of Gender Identity on Name Selection.” Names: A Journal of Onomastics 67, no. 4: 199–211. doi:10.1080/00277738.2018.1536188. Ohio Department of Health. n.d. “Changing or Correcting a Birth Record.” Accessed January 9, 2023. https://odh.ohio.gov/know-our-programs/vital-statistics/Changing­ Correcting-Birth-Record/. Oklahoma Executive Order. 2021–2024. Perez-Brumer, Amaya, Mark L. Hatzenbuehler, Catherine E. Oldenburg, and Walter Bockting. 2015. “Individual- and Structural-Level Risk Factors for Suicide Attempts Among Transgender Adults.” Behavioral Medicine 41, no. 3: 164–171. doi:10.1080/08964289.2015.1028322. Pilcher, J. 2016. “Names, Bodies, and Identities.” Sociology 50, no. 4: 764–779. doi:10.1177/0038038515582157. Puckett, Jae A., Peter Cleary, Kinton Rossman, Michael Newcomb, and Brian Mus­ tanski. 2018. “Barriers to Gender-Affirming Care for Transgender and Gender Nonconforming Individuals.” Sexuality Research & Social Policy 15, no. 1: 48–59. doi:10.1007/s13178-017-0295-8. Ray et al. v. Himes et al., 2018. No. 2:18-cv-00309 S.D. Ohio Ray v. McCloud. 2020. 507 F. Supp. 3d 925 S.D. Ohio Re: Feldhaus, 2017. 796 S.E.2d 316 Ga. Ct. App. Restar, Arjee, Harry Jin, Aaron Breslow, Sari Reisner, Matthew Mimiaga, Sean Cahill, and Jaclyn Hughto. 2020. “Legal Gender Marker and Name Change is Associated with Lower Negative Emotional Response to Gender-Based Mistreatment and Improve Mental Health Outcomes Among Trans Populations.” SSM-Population Health 11 doi:10.1016/j.ssmph.2020.100595. Ryan, J. Michael. 2018. “Gender Identity Laws: The Legal Status of Global Sex/ Gender Identity Recognition.” LGBTQ Policy Journal 8: 3–15. Scheim, Ayden, Amaya Perez-Brumer, and Greta R. Bauer. 2020. “Gender-concordant Identity Documents and Mental Health Among Transgender Adults in the USA: A Cross-sectional Study.” The Lancet 5, no. 4: E196–E203. doi:10.1016/S2468-2667(20) 30032–30033. Sevelius, Jae. 2013. “Gender Affirmation: A Framework for Conceptualizing Risk Behavior among Trangender Women of Color.” Sex Roles 68, nos. 11–12: 675–689. doi:10.1007/s11199-012-0216-5. Shteyler, Vadim, Jessica A. Clarke, and Eli Y. Adashi. 2020. “Failed Assignments – Rethinking Sex Designations on Birth Certificates.” New England Journal of Medicine 383, no. 25: 2399–2401. doi:10.1056/NEJMp2025974.

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Sinclair-Palm, Julia and Kit Chokly. 2022. “‘It’s a Giant Faux Pas’: Exploring Young Trans People’s Beliefs about Deadnaming and the term Deadname.” Journal of LGBT Youth. doi:10.1080/19361653.2022.2076182. Singer, S. 2020. “Trans Rights Are Not Just Human Rights: Legal Strategies for Trans Justice.” Canadian Journal of Law and Society/Revue Canadienne Droit et Société 35, no. 2: 293–315. doi:10.1017/cls.2020.17. Social Security Administration. n.d. “How Do I Change the Sex Identification On My Social Security Record?” Accessed January 11, 2023. https://faq.ssa.gov/en-us/ Topic/article/KA-01453. Spade, Dean. 2008. “Documenting Gender.” Hastings Law Journal 59, no. 4: 731–840. Statistics Canada. 2022. “Canada is the First Country to Provide Census Data on Transgender and Non-binary People.” Accessed January 11, 2023. https:// www150.statcan.gc.ca/n1/daily-quotidien/220427/dq220427b-eng.htm. Steadman, Sarah. 2021. “‘That Name Is Dead to Me’: Reforming Name Change Laws to Protect Transgender and Nonbinary Youth.” University of Michigan Journal of Law Reform 55, no. 1: 1–44. doi:10.36646/mjlr.55.1.that. Tennessee Code § 68–63-203 Title 16 Delaware Admin. Code § 4205–10.0 Trans PULSE Canada. 2020. “Non-binary People and Identity Documents: A Report Prepared for the Saskatchewan Human Rights Commission.” Accessed January 11, 2023. https://transpulsecanada.ca/research-type/reports. transSASK. n.d. “Name Change Guide.” Accessed January 8, 2023. https://www.tra nssask.ca/name-change-guide/. Turton, Stephen. 2021. “Deadnaming as Disformative Utterance: The Redefinition of Trans Womanhood on Urban Dictionary.” Gender and Language 15, no. 1: 42–64. doi:10.1558/genl.18816. US Department of State. 2021. “Proposing Changes to the Department’s Policies on Gender on U.S. Passports and Consular Reports of Birth Abroad.” Accessed Jan­ uary 11, 2023. https://www.state.gov/proposing-changes-to-the-departments-poli cies-on-gender-on-u-s-passports-and-consular-reports-of-birth-abroad/. US Department of State. 2022. “X Gender Marker Available on U.S. Passports Starting April 11.” Accessed January 11, 2023. https://www.state.gov/x-gender-ma rker-available-on-u-s-passports-starting-april-11/. Social Security Administration. n.d. “How Do I Change the Sex Identification On My Social Security Record?” Accessed January 11, 2023. https://faq.ssa.gov/en-us/ Topic/article/KA-01453. Wentling, Tre. 2020. “Contested Citizenship: Renaming Processes Among People of Transgender Experience.” Journal of Homosexuality 67, no. 12: 1653–1674. doi:10.1080/00918369.2019.1610634. XY v. Ontario (Government and Consumer Services). 2012. HRTO 726. Accessed January 12, 2023. https://canlii.ca/t/fqxvb. Yogyakarta Principles. 2017. “The Yogyakarta Principles Plus 10.” Accessed January 4, 2023. https://yogyakartaprinciples.org.

5

Both And vs. Either Or The Challenge of Official Names and Naming for the US Census in Multicultural America I. M. Nick

Introduction: The Birth of a Multicultural Nation According to statistics released by the US Bureau of Census, in February 2019, there were nearly 329 million residents in the United States, making the USA the third most populous nation in the world, second only to India and China (US Bureau of Census 2019). Moreover, based on demographic research, the population size of the nation will continue to experience a positive growth-rate. Government experts predict that, by the year 2051, the total US population will easily have reached 400 million. A significant pro­ portion of this projected growth is expected to come from continued immi­ gration. Indeed, it is estimated that by 2060, one in five US residents will be “foreign born” (Colby and Ortman 2015: 1). The movement of non-Indigenous peoples into the United States is of course nothing new. From its very beginnings, the nation has always enjoyed a rich multicultural history. What has changed are the countries of origin. Whereas, today, the majority of the US foreign-born population comes from Asia and the Americas, during the 18th century, the non­ native-born residents of the original 13 colonies were primarily made up of Africans, Germans, Irish, Scots, English, and Welsh (Fogleman 1992). Over the centuries, the progressive shifts in the country’s cultural composition have presented a formidable challenge to governmental efforts to reliably label and enumerate the US population, particularly with regard to the perpetually contentious constructs of RACE and ETHNICITY. The very first attempt to provide an accurate population count for the bur­ geoning nation took place on the first Monday of August, 1790. It was on that date that the first governmental Census was conducted. The purpose of this ambitious undertaking was two-fold: 1.) to provide an official count of all free and indentured taxpayers living in settled areas along with three-fifths of “all other Persons”; and 2.) to classify all said persons according to their sex and color (US Bureau of Census 1989: 1). For the earliest censuses, the official government enumerators were instructed to record each inhabitant’s country of birth and classify each non-Indigenous person using the racial ethnonyms WHITE, BLACK, or MULATTO. Since that first historic enumeration, the US Bureau of Census has DOI: 10.4324/9781003431510-5

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continued to monitor the evolving cultural diversity of the US population every ten years, without interruption.

The Census 1950–1980: Standardizing the US Government’s Naming and Numbering Policies for the Nation’s Multicultural Identities By the 1950s, the US Census’s system of classification was one of many different schemata being used by federal, state, and local officials to maintain data on the cultural composition of residents within their jur­ isdiction. Though well-intended, the resulting lack of uniformity pre­ sented a significant obstacle to the enforcement of progressive civil rights legislation introduced during the 1950s and 60s. Without consistent sta­ tistical ethno-racial data, it would be impossible to reliably identify ongoing violations in legislation guaranteeing the right to vote, obtain fair housing, and gain access to vital goods and services such as healthcare and education. In hopes of rectifying this situation, the decision was made to devise a standardized system of ethno-racial classification that would be made mandatory for all levels of federal, state, municipal, and local record-keeping on race and ethnicity (Perez and Hirschman 2009; Farley 2004). In June 1974, an ad hoc Committee of Racial and Ethnic Definitions was formed from the Federal Interagency Committee on Education. The Com­ mittee was composed of 25 members from US federal agencies such as the Office of Management and Budget (OMB), the Department of Justice, the Department of Labor, the Department of Health, Education and Welfare, and the US Equal Employment Opportunity Commission. On May 12, 1977, the Committee announced its comprehensive system for naming, enumerat­ ing, analyzing, presenting, and comparing the race and ethnicity of all US American residents. Called the “Standards for the Classification of Federal Data on Race and Ethnicity”, or simply “Statistical Policy Directive 15”, this rubric provided one unified system for tracking the multicultural diversity of the nation using a finite set of pre-defined categories and nomenclature. The conceptual framework of the system was devised around two inter­ secting axes. The first bifurcated the national into two ethnic groupings with the monolithic anthroponymic monikers: HISPANIC OR LATINO ORIGIN; and NON­ HISPANIC OR LATINO. On the second axis, the population was to befurther segre­ gated into five different classifications with the following five accompanying anthroponyms: 1.) AMERICAN INDIAN OR ALASKA NATIVE; 2.) ASIAN; 3.) BLACK OR AFRICAN AMERICAN; 4.) NATIVE HAWAIIAN OR OTHER PACIFIC ISLANDER; and 5.) WHITE. Conceptually, this classification was built on the principle of mutual exclusiv­ ity, such that the selection of one cultural name precluded by default the selec­ tion of another. To accommodate for residents with mixed racial parentage, the Directive instructed survey-takers to select the single one racial category which most closely reflected their recognition in their community (OMB 1997a: 3688). Among policy makers, this new system was immediately praised as a

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major breakthrough in the nation’s history of ethno-racial statistics-gathering. However, in the general population, enthusiasm was much less forthcoming. No sooner had Directive 15 been introduced did the criticisms begin to emerge. In particular, critics charged that the new system placed respondents with multicultural parentage in the untenable position of having to officially deny parts of their cultural identity. In response to this criticism, govern­ ment officials conceded that any psychological imposition was indeed regrettable. Nevertheless, they countered, the current and projected size of this sub-population was so small that it did not warrant altering the entire system of classification (Johnson et al. 1997). This dismissive reaction would later go on to haunt the US Census. Not only had the policy makers grossly underestimated the backlash that would come from ignoring public demands for self-designation, but they had also completely failed to recognize the seismic impact that a ground-breaking piece of legislation would soon have upon the future of all Census-taking in the nation. On June 12, 1967, nearly ten years to the day before the Statistical Policy Directive No. 15 was released, the US Supreme Court issued a ruling that dealt a devasting blow for segregationist America. In the landmark case, Loving v. the State of Virginia, the US High Court ruled that anti-mis­ cegenation legislation was in direct violation of the 14th Amendment of the US Constitution. As Chief Justice Warren wrote, it was the opinion of the court that: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” (Cornell Law School Law Archive). With that ruling, allacross the nation, interracial marriage was immediately decriminalized and was no longer pun­ ishable by exile, financial fine, or imprisonment. Despite this revolutionary ruling, at the time thatDirective No. 15 formally came into effect, the number of interracial and interethnic marriages was still comparatively low, thanks to long internalized psychosocial prohibitions against crossing cultural lines. Gradually, however, as acceptance of cross-cultural relationships increased, so too did the number of interracial/interethnic marriages and children (Livingston 2017; Livingstone and Brown 2017). In 1970, approxi­ mately 1% of the babies born in the US were officially registered as multi­ cultural. By 2013, that number had risen to 10% of all US births. Today, it is estimated that nearly 7% of the US population could be considered offi­ cially multicultural (Parker et al. 2015). Should this trend continue as expected, by the year 2050, no less than a quarter of Asian Americans and African Americans, as well as half of all Hispanic Americans, will have recent mixed ancestry (Perez and Hirschman 2009). A direct result of this multicultural boom has been the progressive erosion of the perceptual boundaries between racial and ethnic identities on a national scale. This is not to say that multicultural heritage in the US is a new phenomenon. In fact, nothing could be further from the truth. There is much irrefutable scientific evidence that ethnic and racial mixing has always taken place between and within all of the cultural groups that have

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populated the United States (Perez and Hirschman 2009; Laversuch 2005; Hollinger 2003; Gordon-Reed 1998; Daniel 1991; Davis 1991). What has changed thenis not the presence of multicultural peoples per se, but rather the collective socio-psychological willingness of the nation to officially recognize the numerical strength and societal significance of multicultural identity. In view of this evolution, Census officials were eventually forced to concede that it was insufficient to provide a tally of the cultural diversity found within the population as whole. What was needed was a system that would permit officials to identify, classify, name, and enumerate the cultural diversity reported within US American residents.

The Census 1990–2000: Facing the Crisis in US American Enumeration and Identification During the 1990s, the US Government began an official review of Directive 15. One of the primary objectives of this appraisal was to determine the current acceptability, transparency, and reliability of the names the Census was using to label respondents’ cultural identities. Using face-to-face inter­ views, telephone surveys, and mail-out questionnaires, government agencies such as the National Center of Health Statistics and the Bureau of Labor Statistics conducted several large-scale investigations. Three of the most important were the Current Population Survey (CPS), the US Census Bureau National Content Survey (NCS), and the Race and Ethnic Targeted Test (RAETT) (Gerber and De la Pente 1996). In addition, the Bureau also commissioned a number of smaller-scale studies that targeted specific min­ ority communities to ascertain their attitudes towards and preferences for competing ethno-racial nomenclature. Examples include Hispanic v. Latino; Asian v. Pacific Islander; Hawaiian v. Native Hawaiian; Black v. African American; American Indian v. Native American; Alaska Native v. Eskimo and Aleut; Multiracial v. Mixed Race v. More than One Race. During a series of Congressional hearings, the government also invited the general public to provide feedback on the ethno-racial nomenclature mandated by Directive 15. A wide variety of stakeholders—from scientific researchers and government administrators, to social activists and private citizens—shared their expertise with an eye to improving the accuracy and acceptability of the way the US Census gathered ethno-racial statistical data (Perez and Hirschman 2009; Snipp 2003). On July 19, 1997, the OMB officially published the results of its review and announced the new revisions of Statistical Policy Directive No. 15. According to the final report, officials hoped that the new set of standards would effectively provide “a common language to promote uniformity and comparability for data on race and ethnicity” (OMB 1997b: 58782). Initially, reaction to the introduced changes was quite positive. As of the 2000 Census, in addition to the five basic categories of race and two of ethnicity, respondents would be provided with a new category named Some Other Race or SOR. The purpose of this

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terminological addition was to provide a classificatory option for Census respon­ dents “who were unable to identify with the standard five racial categories” (Grieco and Cassidy 2001: 2). Thus, survey-takers would no longer be required to adopt a name that they felt misrepresented their racial identity. In addition, for the very first time, respondents would be invited to select more than one racial ethnonym to indicate their cultural identities (Jones and Smith 2001). Instead of the previous fixed-response format, a new mul­ tiple-choice layout would give survey-takers the freedom to designate their chosen ethno-racial identity using the full breadth of official nomenclature available. This flexibility would also give the US government an opportunity to collect reliable, highly specific, statistical data on residents who identified with more than one racial grouping. The initial public response to these changes amongst multicultural proponents was overwhelmingly positive. The government had finally seemed to recognize the importance of counting the full breadth and depth of the nation’s complex cultural heritage. What many enthusiasts did not realize, however, was that the US Census Bureau’s new surface strategy of allowing survey-takers to mark “both and” rather than “either or” had done nothing to alter its internal enumeration policies. According to this protocol, responses from individuals who had either marked two or more races, or had written-in some other racial designation, were to be automatically re-coded by Census officials and aggregated into one of the original five monolithic racial categories. Typically, these re-assignments were to follow the US system of hypodescent, where mixed-race peoples were automatically assigned the racial classification of the progenitor with the lowest socio-economic prestige. Using this strategy of re-assignment, a bicultural person who selected the racial ethnonyms White and Black would be auto­ matically aggregated with the group labelled Black or African American. By the same token, a tricultural individual who had selected the names White, Asian and/or Pacific Islander, and Black or African American would also be re­ assigned the classificatory monocultural name Black or African American. Though such policies of re-classification have long been vociferously denounced as singularly racist, in all fairness, this accusation may not take into account the underlying socio-political complexities of population sta­ tistics in the United States. As simple as the “mark all that apply” direction may appear on the surface, the resulting complexity and diversity of responses this option generates is truly staggering. As Perez and Hirschman (2009) explain, the introduction of this multiple-choice format in Census 2000 meant that in addition to the original six single-race categories, there were now “15 two-way combinations, 20 three-way combinations, 15 fourway combinations, 6 five-way combinations, and 1 six-way combination, for a total of 63 racial groups, or 126 if cross-classified by Hispanicity” (7). A routine method for effectively managing such response-complexity is simply to merge smaller data clusters into one of the original higher-order cate­ gories (Autry 2017). This reasoning, however, did nothing to explain why people who had selected more than one racial anthroponym were given the

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designation of the lowest socio-economic category within their selected selfdescriptors. Surely, if data-reduction alone were the guiding principle for category re-assignments, multicultural respondents should have had an equal opportunity of being counted with the white majority as with the non-white minorities. As this was clearly not the case, there would seem to have been more politics than mathematics behind the Census’s decision-making. As many a concerned civil rights leader pointed out, there was good reason for that being the case. In order to continue to effectively monitor whether civil rights and equal employment legislation was being properly enforced, it was essential to preserve the historical continuity of the ethno-racial data collected. Essen­ tial to achieving this objective is the preservation of the original ethno­ racial categories upon which this legislation was founded (OMB 2016). Were the number of multicultural peoples to be kept disaggregated from the original five categories, the result would be a historic undercount of the nation’s ethno-racial minorities which, in turn, would have potentially devastating repercussions for these already vulnerable communities. For that reason, the re-assignment of multicultural peoples to minority classi­ fications was done not only with the knowledge, but also at the explicit request, of civil rights activists during the governmental review of Direc­ tive 15. By all means, they argued, the voices of multicultural peoples should be heard but not at the expense of turning a deaf ear to the needs of other ethno-racial minorities. Moreover, as many minority leaders wryly pointed out, no matter how nuanced or complex a multicultural peoples may view their own identities, at the end of the day, in the eyes of the general public, their identities were still equivalent to that of their lowest socio-economic progenitor. Two decades of Civil Rights activism could simply not erase centuries of cultural bigotry and discrimination. For better or worse, “the way in which a person defined himself or herself is distinct from the way in which the society defines him or her” (Hollinger 1995: 97). While these arguments held sway amongst some census observers, many others interpreted the government’s internal policy of monocultural re­ assignment as deceitful, disrespectful, and detrimental. Although social and political alliances with other minority communities were indeed desirable, multicultural advocates argued that identifications could not and should not be forced or manufactured (Parker et al. 2015). To do so constituted an egregious violation of an individual’s civil liberties. For many multicultural US residents, the US Census 2000 had simply “created the illusion of flex­ ibility while maintaining the long-standing system of racial segregation and stratification” (Cruz-Jansen 2000: 49). Consequently, many multicultural activists concluded that the announced revisions to Directive 15 amounted to little more than “a palliative to deceive persons of multiracial and/or multiethnic backgrounds into believing that their multiple heritage and identity has finally been legitimized” (Cruz-Jansen 2000: 49).

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Infuriated multicultural advocates rallied their followers to rebel against the US Census. These protests were to take place in a variety of ways. Some called on multicultural residents to refuse to answer any questions about their identity by either skipping the questions completely or selecting the non-descript category, SOR. Others suggested that a more effective form of protest would be to select designations of particularly endangered cultural sub-populations such as Native American or American Indian in hopes of boosting their numerical size and increasing their sociopolitical strength. Still others lobbied for a complete boycott of the national count as a hope­ lessly antiquated, fatally flawed, and potentially dangerous infringement of the individual’s right to self-define. As Roberto Ramirez, the Assistant Division Chief at the Bureau’s Special Population Statistics Branch explained in a 2016 interview with The Atlantic, the fallout was real. In diachronic research conducted by the Bureau it was determined that “people are increasingly not answering the race question” because “they are not identifying with the current categories” (Ashok 2016). Ironically, as Ramirez later admitted during the interview, he himself routinely selects the combined designation Hispanic SOR because no other Census anthroponym fits him. Importantly, Ramirez’s experience is by no means iso­ lated. As study after study has determined, Hispanic Americans—who repre­ sent a dazzling blend of colors, national origins, cultures, traditions, and languages—felt a particular cognitive dissonance in reaction to the Census’s traditional conceptualization of RACE and ETHNICITY (Cohn 2017; Rodriguez 2000; Rodriguez 2009). As a direct consequence, Hispanic Americans continue to report with disproportionate frequency multiple race combinations, includ­ ing SOME OTHER RACE: a serious concern considering the fact thatHispanic Americans represent one of the fastest growing groups in the United States (Ennis et al. 2011; Humes et al. 2011). The consistent re-allocation of these multicultural peoples to a monoracial minority grouping, no matter how well-intended, has, according to many Hispanic American advocates done a profound disservice to this vital community (Alba 2018; Taylor et al. 2012; Lee and Bean 2004). While advocates of multicultural US residents stress that social and political alli­ ances with other minority communities are indeed desirable, they could not and should not be forced or manufactured (Root 1996; Parker et al. 2015). To do so constitutes an egregious violation of an individual’s civil liberties. For many US American residents then, declaring their (multi) cultural identity was no longer perceived as a question of social privilege but a fundamental and unassailable right. Following that logic, it was argued that the governmental strategy of aggregation without the express permission or knowledge of US residents was tantamount to data-tamper­ ing. Furthermore, by essentially nullifying their existence, this policy effectively violated multicultural people’s Constitutional right to equal representation and protection under the law.

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This argumentation was used with great success in the lower courts throughout the United States, as state and local governments that had exclu­ sively used the terminological framework of Directive 15 were successfully sued by multicultural residents and forced to include a name for multicultural/ multiethnic peoples for their record-keeping (National Center for Education Statistics 1998; Ungar 1997). If left unchecked, this bottom-up language policy development threatened to destabilize the link between federal, state, and local data-collection efforts, and thereby undermine one of the primary goals of Directive No. 15: namely, the establishment of a universal standard for interagency collection and interpretation of ethno-racial population data. If the US Census was to meet its Constitutional oversight mandate, clearly something would have to be done.

The Census 2020: A Brave New Census for a Brave New Nation? By 2010, the Bureau had already sprung into action. With an eye towards the 2020 Census, the government launched one of the most ambitious scientific initiatives to gather information on how best to improve official efforts to name and enumerate multicultural America. The investigation began with the Alternative Questionnaire Experiment (AQE) that tested the effectiveness of ethno-racial terminology across varying formats using a targeted sample of 40,000 US households (Compton et al. 2013). In 2015, as a follow-up to the AQE, the Bureau also conducted a nationally representative survey of ca. 1.2 million households in the United States and Puerto Rico, called the National Content Test (NCT) (Matthews et al. 2017). The purpose of the NCT was to determine which question design and terminological content would yield the highest data quality in terms of consistency and reliability. And, as before, the US government invited commentary from interested stakeholders from science, government, and the general public. On the basis of this accumulated information, the Obama administration made several revolutionary recommendations for altering the way the govern­ ment asked US residents to indicate their cultural identities. Chief among them was that the intersecting constructs of RACE and ETHNICITY would no longer be presented in two separate axes but would be combined. Furthermore, along with offering racial ethnonyms, the recommended survey format would present survey takers with names to indicate their ancestral geographic origins. For example, respondents who selected the racial ethnonym White would also be invited to mark one or more of the following options: German, Italian, Irish, Polish, English, and/or French. Persons who selected the racial ethnonym His­ panic, Latino, or Spanish would be allowed to additionally mark Mexican, Salvadoran, Puerto Rican, Dominican, Cuban, and/or Colombian. Survey respondents who identified themselves with the racial ethnonym Black or African American could also mark African American, Nigerian, Jamaican, Ethiopian, Haitian, and/or Somali. Respondents who selected the moniker Asian could additionally select the names Chinese, Vietnamese, Filipino,

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Korean, Asian Indian, and/or Japanese. Respondents who selected Native Hawaiian or Other Pacific Islander would be invited to also select Tongan, Samoan, Fijian, Marshallese, and/or Chamorro. Persons who selected the cul­ tural identifier American Indian or Alaska Native would be asked to writein the name of their tribal affiliation(s). Moreover, a new racial ethnonym was introduced to the traditional quintile classification system: MIDDLE EAST­ ERN OR NORTH AFRICAN. Respondents who chose this cultural moniker would also be offered the opportunity to further delineate their cultural ancestry by selecting one or more of the following geography-based anthroponyms: Lebanese, Syrian, Iranian, Egyptian, and/or Israeli. To accommodate those respondents who did not find a suitable name among those offered for their cultural identity, personally devised self-declinations (autonyms) would be allowed along with the category SOME OTHER RACE. And, to top it all off, survey respondents would still be allowed to mark as many ethno­ racial categories as they wished. Taken all together, these proposed recommen­ dations would finally make it possible for a multiracial/multiethnic respondent with, say, a Japanese American mother and an Afro-Cuban Hispanic father to just as clearly and completely mark his/her entire cultural identity as someone who identified him/herself as being a WHITE US American resident with German and Irish parentage. At the same time, the retention of the basic rubric introduced in Directive 15 also permitted the data to be quickly and efficiently aggregated into the traditional ethno-racial categories, thereby preserving the mandatory computational continuity in the government’s collection of ethno­ racial population data. The conceptual elegance and methodological robustness of the newly proposed system were roundly praised. As Ken Prewitt, Census Bureau Director under the Clinton administration, admitted, at the end of the day, no one would willingly take on the mammoth task of changing the official methods of gathering population data if it could be avoided. However, Prewitt explains, “a country with demographics as fluid as the US has to adjust its sta­ tistics” (Wang 2018). According to the former Bureau Director, the proposal to combine RACE and ETHNICITY into one question is a “really innovative” way to address the challenge of collecting population data from an increasing number of US American residents who felt that the traditional methods of extracting data about their cultural identity was confusing, insulting, or irrelevant (Wang 2018). As the Census 2020 loomed, spirits were high that the government had finally devised an effective yet sensitive statistical tool for measuring the nation’s true cultural diversity. All that changed in November 2016, when the results of the 46th US Presidential election were announced. No sooner had the Trump administration assumed power were announcements made that fundamental changes would be taking place in the way the government investigated RACE, ETHNICITY, and ANCESTRY in the United States. It was further declared that the policy proposals that had been painstakingly developed over ten years of scientific research, primarily under the Obama administration, would in all likelihood be replaced by a new scheme developed by the Trump administration. This new approach

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would, according to officials, be bigger and better than anything that had ever been used before. To help achieve this vision, President Trump announced his pick to take over as Bureau Director for the upcoming 2020 count—Thomas Brunell, a professor of political science at the University of Texas at Dallas, who civil rights activists pointed out had a history of sup­ porting racial gerrymandering and voter suppression laws (Berman 2018). Although Brunnell’s nomination was successfully blocked, there was much to indicate that all was not well within the Bureau. Despite vainglorious promises of radically improving census-taking methods and procedures of the past, in point of fact, the Bureau was in considerable trouble. As of 2018, two years before the decennial census of nearly 400 million people was to take place, the Bureau still had no permanent director, its budgetary funding had been slashed, its field tests had been cancelled, and the new IT system that was being piloted to allow respondents to complete their questionnaires online had revealed many anxiety-provoking data-management security risks. To make matters worse, the proposed changes being entertained by the new administration had not been ade­ quately tested. The sum-total of these and other problems lead the US Government Accountability Office to give the Bureau of Census a high-risk rating. In view of these problems, the Trump administration’s report on its master plan for the 2020 Census was highly anticipated. On January 26, 2018, nearly two months after its self-declared December 1 deadline, the official announcement was finally released. Somewhat unsurprisingly, the Bureau announced that it would not be following the recommendations made under the Obama administration. Instead, the 2020 Census would be reverting to the two-question format which had been laid out in the 1997 Standards for the Classification of Federal Data on Race and Ethnicity (aka Directive No. 15) (US Bureau of Census 2018). The decision to return to the approach introduced nearly a quarter of a century ago was met with scathing rebuke (Alba 2018). On January 25, 2018, for example, the Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations dedicated to promoting and protecting the civil rights within the US, released the following statement: We are alarmed that the new administration is discarding years of painstaking, objective research that would improve the collection and reporting of this data. […] We call on Congress to investigate why the administration undermined a comprehensive and, frankly, overdue examination of whether official statistics reflect the full diversity of our rapidly changing population. Congress should not allow the Trump administration’s misguided decision to overturn recommendations from expert Census Bureau staff. (Civil and Human Rights Coalition 2018)

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This sentiment was echoed by Arturo Vargas, the Executive Director of the National Association of Latino Elected and Appointed Officials Educational Fund. In an official statement released in reaction to the Trump administra­ tion’s announcement, Vargas wrote: “The decision to ignore years of research and the expert advice of scientists is a blow to science and the collection of the best data possible” (Wang 2018). To be sure, the disappointment and anger over what could be legitimately considered a gross squandering of time, resources, and information is under­ standable. However, pragmatically speaking, the decision to revert to the names and conceptual framework mandated by the 1997 Census is no doubt preferable to the sheer chaos that would have resulted had a radically new, inadequately tested, classificatory system of naming and tabulating had been introduced. Still, the failure of the government to implement at least some of the recommendations made under the Obama administration ultimately led many to fear that the divide between the government’s and the people’s notion of cultural identity would only increase, leading to a further reduction in the quality and reliability of the data collected.

Census 2020: A Perfect Storm and its Toxic Aftermath Alongside the above-mentioned historic mismanagement, the officials of the US Census Bureau labored under unprecedented partisan interference in the final months before the survey roll-out. This obstruction took place both indirectly and directly. Indirectly, the repeated introduction of policies designed to radi­ cally decrease foreign immigration and identify US residents with precarious immigration status helped to create general feelings of distrust within ethno­ racial communities across the nation. In particular, there was great concern that the data gathered by the US Census could be used by government officials to target community members for detainment and/or deportation (Gamboa 2020). These fears were stoked by repeated efforts made by the Trump admin­ istration to have a question included on the Census questionnaire that would specifically ask respondents about their citizenship status (Merck 2019). As John Yang, President and Executive Director of Asian Americans Advancing Justice explained: “when the administration proposed to add the citizenship question without any testing, we knew right away we had a five-alarm fire” (Gamboa 2020: para. 8). Although the former President’s efforts were ulti­ mately blocked by the US Supreme Court ruling, that fact did little to calm residents’ fears over data security and respondent privacy. The damage to public confidence in the vital governmental measure had already been done. This was not, however, the only assault the US Census Bureau had to fend off during the preparation of the 2020 survey. The US Census was also the repeated target of unprecedented direct interference in the way the Bureau gathered, managed, and analyzed ethno-racial data (Percival 2022). For example, on July 21, 2020, a Memorandum was released from the Executive Office of the President which demanded the exclusion of illegal

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aliens from the population data form to determine the proportion of congressional representatives each state should be allocated (Federal Register 2020). Once again, the aberrant policy directive landed before the US Supreme Court which struck down the Memorandum, citing that the suggested exclu­ sion would be “incongruent” and was based on reasoning that was “contrived” (US Supreme Court 2019). This was not the end to the administration’s hin­ derance. As has since been revealed through documents obtained via the Free­ dom of Information Act, several political appointees attempted to alter the technical procedures of the tabulation process. Were that not enough, Census officials had to contend with another historic obstacle: the COVID-19 pan­ demic which “broke out in the United States just as the 2020 Census got underway” (Colin and Passel 2022). In March 2020, in response to the health emergency, the Bureau elected to temporarily suspend certain operations which tended to put employees and/or the general public at risk; and sought a 120-day extension for the data-collection (US Department of Commerce 2020). No extension was granted. In fact, Census officials were directed to accelerate their data-collection and processing. Fears that ending the tabu­ lation earlier could lead to inaccurate counts, particularly of communities of color, were not only felt by long-time employees of the Census. Also con­ cerned were civic leaders whose constituencies relied on the decennial counts for the distribution of essential federal funding, the allocation of congressional seats and the determination of electoral college representa­ tion. Given the high stakes, it is not surprising that over half a dozen municipalities (e.g., Los Angeles, California; Austin, Texas; King County, Washington State, etc.) filed a formal objection and/or lawsuit against the Bureau and the Commerce Department (Schneider 2020). In the face of such dauting obstacles, some questioned whether the 2020 Census could be finished at all. However, thanks to the diligence and commit­ ment of the tens of thousands of people who make up the Bureau, the survey was completed. As the National Academies of Sciences, Engineering, and Med­ icine (NASEM) cautioned in its commissioned report on the reliability of the 2020 data, to commend the Bureau for completing the nationwide survey under such formidable challenges is not to be interpreted as stating that “the 2020 Census and its data products are high quality and credible” (NASEM report: 56). In fact, a careful review of the collected ethno-racial data revealed an exacerbation of the previous identification problems noted in the earlier surveys. As the NASEM report concluded, the predictable reduction in the quality of the data was related to “the inability for national statistical policy to coalesce around a combined race and Hispanic origin questions (and other improved questions) despite several years of testing alternative structures” (56). Like so many times before, cross-checking with other data sources and the 2010 datasets demonstrated that the Census’s tabulations for ethno-racial minorities were significantly undercounted. Persons who identified as BLACK OR AFRICAN AMERICAN were undercounted by 3.30% as opposed to the 2.0% undercount of 2010. Persons who (were) reported as HISPANIC/LATINO were undercounted

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by -4.99%, a dramatic rise from the 2010 undercount of -1.54%. And among Census respondents who resided on a reservation and (were) identified as American Indian/Alaska Native the count was 5.64% lower, which was also more than the undercount of -4.88% that was determined for 2010 (Census 2022). By comparison, US residents who fell into the category WHITE, NOT OF HISPANIC ORIGIN were once again overcounted. For communities with large portions of ethno-racial minorities, these results were disastrous. The failure to revise the ethno-racial terminology in the 2020 schedules may also have helped contribute to the fact that, for the first time in US history, after the identifier White, not of Hispanic Origin, the racial eth­ nonym which the majority of US residents selected was Some Other Race, either alone or in combination (Jones et al. 2020). This means that roughly one in seven US residents preferred SOR to any other designator (Wang 2021). The popularity of this identifier could be due to a number of fac­ tors. For some respondents, the selection of SOR may have been motivated by a generalized rejection of the entire social construct of RACE. Others may have selected the comparatively ambiguous option, SOR, to protect their personal identity, particularly in view of the racially charged climate in which the Census was released. Still others may have chosen the name SOR by default as none of the other options felt appropriate to their cir­ cumstance. Whatever the reason, the fact that 49.9 million US residents selected the modernized version of “other” means a considerable loss of potentially rich data. It is remarkable that the number of people who picked this comparatively amorphous group name was even greater than those who indicated that they had a multiracial background. In total, the Census reported 33.8 million people made up this classification, which is an astounding 276% increase from 2010 (Jones et al. 2020). Taken together, these findings point to the continuation of a significant population trend. The US is becoming increasingly diverse. In statistical terms, this means that the probability that two residents chosen at random will have two different ethno-racial identities has substantively increased since 2010. This so-called “diversity index” was found to be particu­ larly high in the coastal regions of the US (e.g., California, New York, Florida, and Texas) (Census 2021b). There is a certain irony in the fact that the more culturally diverse the population has become, the less able the US Census has been to obtain more detailed information about this demographic shift in identity and identification. The longer this disjoint continues, the harder it will be to fairly and equitably distribute funds and resources to the communities that need them the most. In hopes of better meeting this governmental mandate, the Biden administration took immediate steps to shore up the institutional powers of the US Census to conduct national enumerations without undue outside interference. This administrative commitment is echoed in the January 2022 policy report issued by the National Science and Technology Council and Biden’s Scientific Integrity Task Force:

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I. M. Nick Protecting scientific integrity is essential to the progress of science and its application to a broad set of economic and societal objectives supported by Federal Government action (e.g., advancing public health […] Violations of scientific integrity can substantially undermine science and ultimately harm decision-making and public trust in government. Violations can dis­ tort the science itself, altering the types of data collected, the way they are collected, the way they are analyzed, or whether they are collected at all. […] Upholding scientific integrity is therefore an issue not only for scien­ tists and Federal agencies that support scientific and technical research, but also for decision-makers and the general public. (6)

In line with the above resolution, in January 2023, the OMB, under Director Shalanda Young, issued a new proposal for updating the OMB’s Race and Ethnicity Statistical Standards. Members of the general public and the scientific community are all invited to offer their opinion and evidence-based arguments for or against several suggested updates to the 1997 Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity. Among the primary suggestions made was to collect race and ethnicity data using one combined question. The OMB plans to complete its revisions of the Directive by the Summer of 2024 (OMB 2023).

Lessons Learned, Opportunities Missed, and Commitments Made Personal names (e.g., first and last names) and group names have many simila­ rities. Both serve as a powerful signal to the surrounding community about one’s identity. Both influence the way in which the world views their bearers. From intelligence, affluence, attractiveness, and competence, the personal and group names we carry affect the way the world sees us. At the same time, the con­ notations our personal and group names carry are also subject to terrific variance over time, situation, and context. Just as personal names can rise and fall in popularity, group names are also subject to the synchronic and diachronic vicis­ situdes of taste. What was once considered to be a powerful, desirable, label of identification may pejorate over time to become distained, embarrassing, and wholly undesirable. For all these similarities between group names and personal names, the ways in which the US government regulates the two is strikingly dis­ similar. While US residents are given extraordinary freedom to select the official personal name of their choice, the government imposes strict regulations on the official group names residents may use. For example, as a general rule, having one official personal name in the United States does not automatically preclude a resident from taking on another. As this chapter has shown, the US government has clearly not demonstrated the same flexibility with official group names. From the very start of governmental recording, there have been strict prohibitions against residents taking on more than one cultural moniker. The selection of one has traditionally been viewed as precluding the serial or

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simultaneous adoption of another, in perpetuity. Adherence to this model is so strict that governmental authorities have taken the liberty of reassigning residents’ chosen group names when and as the political mandate demands. This rigidity is directly a function of the underlying constructs these anthro­ ponyms have been devised to represent. Despite decades of scientific research to the contrary, US governmental policy makers still conceptualize RACE and ETHNICITY as invariant biological-based, mutually exclusive, categories with readily identifiable borders. However, as has been shown here, this official conceptualization is in radical opposition to the view held by a significant proportion of the US population. For a growing number of US American residents, belonging to one cultural group in no way precludes claiming membership in many others. Multi­ culturalism has become the new national norm. No greater indication of this evolution can be seen than in the dramatic popularity of genealogy. Across the nation, millions of US American residents have begun to research their ances­ tral roots. With the advent of affordable genetic test kits, what was once an unusual personal hobby has turned into a veritable national obsession (Rega­ lado 2018). As a result, millions of US Americans are now discovering the cul­ tural complexity of their family histories and are beginning to lay onomastic claim to their multiple identities. Ironically, some of the best evidence for the malleability of US residents’ cultural identity comes from the United States Bureau of Census. As numerous population studies have demonstrated, millions of people, across every cultural classification, have reframed their cultural identities in a multitude of directions: from one single race/ethnicity to another; from multiple ethno-racial categories to a single one (Liebler, Porter, Fernandez, Noon, and Ennis 2017; Liebler 2016; Liebler, Bhaskar, and Porter 2016; Miville, Constantine, Baysden, and So-Lloyd 2005; Mowen and Stansfield 2016; Parker, Horowitz, Morin, and Lopez 2015; Badger 2014; Liebler and Ortyl 2014). In a controlled comparison of population data taken from the 2010 and 2000 Census enumerations, for example, it was found that more than 10 million respondents had chosen different race or ethnicity anthroponyms to classify their cultural identity (Cohn 2014). Importantly, such shifts in identity and identification are neither new nor isolated to issues of ancestry. As ample psychosocial research has demonstrated, identity is far from a fixed state of being; it is a perpetual, infinitely malleable process of construction and deconstruction, amalgamation and distillation. One of the best ways the government has of tracking these sometimes volatile, oftentimes subtle, demographic processes is to track the names individuals and groups select to identify themselves (Nick 2013; Watzlawik, Pizarrosso, Gui­ maräes, Guimaräes Doria, Han, Ma, and Jung 2012; Laversuch 2007; Laversuch 2005). To do this, however, the government decision-makers may never again be allowed to forget or ignore one of the hallmark principles of serious, respon­ sible, survey research: the key to accurate assessment is to make the measure fit the people, not the reverse.

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and Multiethnic Respondents in Survey Interviews.” Evaluation Review 21, no. 6: 671– 687. doi:10.1177/0193841X9702100602. Jones, N., R. Marks, R. Ramirez, and M. Ríos-Vargas. 2020, August 12. “Census Illuminates Racial and Ethnic Composition of the Country.” New India Times. https://www.newsindiatimes.com/2020-census-illuminates-racial-and-ethnic-compo sition-of-the-country/. Jones, N. 2015. “Update on the U.S. Census Bureau’s Race and Ethnic Research for the 2020 Census.” US Census Bureau Newsletter. Accessed February 12, 2018. https:// www.census.gov/people/news/issues/vol3issue6.html#3. Jones, N. and A. Symens Smith. 2001. Census Brief 2000: The Two or More Races Population. Accessed February 15, 2019. https://www.census.gov/prod/2001pubs/ c2kbr01-6.pdf. Laversuch, I. 2007. “The Politics of Naming Race and Ethnicity: Language Planning and Policies Regulating the Selection of Racial Ethnonyms Used by the US Census 1990– 2010.” Current Issues in Language Planning 8, no. 3: 365–382. doi:10.2167/cilp128.0. Laversuch, I. 2005. Census and Consensus?: A Historical Examination of the US Census Racial Terminology Used for American Residents of African Ancestry. Berlin: Peter Lang. Lee, J. and Frank D. Bean 2004. “America’s Changing Color Lines: Immigration, Race/Ethnicity and Multiracial Identification.” Annual Review of Sociology 30: 221–242. doi:10.1146/annurev.soc.30.012703.110519. Liebler, C., S. Porter, L. Fernandez, J. Noon, and S. Ennis. 2017. “America’s Churning Races: Race and Ethnic Response Changes between Census 2000 and the 2010 Census.” Demography 54, no. 1: 259–284. Liebler, C. R. Bhaskar, and S. Porter. 2016. “Dynamics of Race: Joining, Leaving, and Staying in the American Indian/Alaska Native Race Category between 2000 and 2010.” Demography 53, no. 2: 507–540. Liebler, C. 2016. “On the Boundaries of Race: Identification of Mixed-Heritage Chil­ dren in the U.S., 1960 to 2010.” Sociology of Race and Ethnicity 2, no. 4: 548–568. doi:10.1177/0002716218766276. Liebler, C. and T. Ortyl. 2014. “More than a Million new American Indians in 2000: Who are they?” Demography 51, no. 3: 1101–1130. doi:10.1007/s13524–13014–0288–0287. Livingston, G. 2017, June 6. “The Rise of Multiracial and Multiethnic babies in the U.S. PEW Research.” Accessed February 12, 2019. http://www.pewresearch.org/fa ct-tank/2017/06/06/the-rise-of-multiracial-and-multiethnic-babies-in-the-u-s/. Livingston, G. and A. Brown. 2017. “Intermarriage in the U.S. 50 Years After Loving v. Virginia.” PEW Research May 18, 2017. Accessed February 10, 2019. http://www.pew socialtrends.org/2017/05/18/intermarriage-in- the-u-s-50-years-after-loving-v–virginia/. Matthews, K., J. Phelan, N. Jones, S. Konya, R. Marks, B. Pratt, J. Coombs, and M. Bentley. 2017. 2015 National Content Test: Race and ethnicity Analysis Report: A New design for the 21st Century. Washington, DC: US Bureau of Census. https:// www2.census.gov/programs-surveys/decennial/2020/program-management/final-a nalysis-reports/2015nct-race-ethnicity-analysis.pdf. Merck, A. 2019, October 21. “14 Things Latinos Should Know About the 2020 Census.” Salud America!https://salud-america.org/14-things-latinos-should-know-a bout-the-2020-census/. Miville, M., M. Constantine, M. Baysden, and G. So-Lloyd. 2005. “Chameleon Changes: An Exploration of Racial Identity Themes of Multiracial People.” Jour­ nal of Counseling Psychology 52, no. 4: 507–516. doi:10.1037/0022-0167.52.4.507.

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Mowen, T. and R. Stansfield. 2016. “Probing Change in Racial Self-identification: A Focus on Children of Immigrants.” Sociology of Race and Ethnicity 2, no. 3: 323–337. doi:10.1177/2332649215611685. National Center for Education Statistics. 1998. Racial and Ethnic Classifications Used in US Public Schools. Accessed February 1, 2019. https://nces.ed.gov/pubs98/ 98035.pdf. National Academies of Sciences, Engineering, and Medicine. 2022. Understanding the Quality of the 2020 Census: Interim Report. Edited by Teresa Sullivan and Daniel Cork. Washington, DC: The National Academies Press. National Science and Technology Council. 2022, January. “Protecting the Integrity of Government Science: A Report by the Scientific Integrity Fast-Track Action Committee.” https://www.whitehouse.gov/wp-content/uploads/2022/01/01-22-Pro tecting_the_Integrity_of_Government_Science.pdf. Nick, I. M. 2013. “A Question of Faith: An Investigation of Suggested Racial Eth­ nonyms for Enumerating US American Residents of Muslim, Middle Eastern, and/ or Arab Descent on the US Census.” Names: A Journal of Onomastics 61, no. 1: 8–20. doi:10.1179/0027773812Z.00000000021. Office of Management and Budget. 2016. Interim Report to the Office of Manage­ ment and Budget: Review of Standards for Maintaining, Collecting, and Present­ ing Federal Data on Race and Ethnicity. https://www.whitehouse.gov/sites/ whitehouse.gov/files/briefing-room/presidential-actions/related-omb-material/r_e_ iwg_interim_report_022417.pdf (accessed February 1, 2019). Office of Management and Budget. 1997a. “Recommendations from the Interagency Committee for the Review of the Racial and Ethnic Standards to the Office of Management and Budget Concerning to the Standards for the Classification of Federal Data on Race and Ethnicity.” Federal Register 62, no. 131: 36874–36946. Office of Management and Budget. 1997b. “Revisions to the Standards for the Clas­ sification of Federal Data on Race and Ethnicity.” Federal Register 62, no. 210: 58782–58790. Parker, K., J. Horowitz, R. Morin, and M. Lopez. 2015. “Multiracial in America: Proud Diverse and Growing in Numbers.” PEW Social Trends. Accessed February 10, 2019. http://www.pewsocialtrends.org/2015/06/11/multiracial-in-america/. Percival, K. 2022, January 25. “Analysis: Documents Reveal Trump Administration’s ‘Unprecedented’ Attempts to Influence 2020 Census.” Brennan Center. https:// www.brennancenter.org/our-work/analysis-opinion/documents-reveal-trump-adm inistrations-unprecedented-attempts-influence. Perez, A. and C. Hirschman. 2009. “The Changing Racial and Ethnic Composition of the US Population: Emerging American Identities.” Population Development Review 35, no. 1: 1–51. doi:10.1111/j.1728–4457.2009.00260.x. Regalado, A. 2018. “2017 was the Year Consumer DNA Testing Blew Up.” MIT Technology Review. Accessed January 20, 2018. https://www.technologyreview. com/s/610233/2017-was-the-year-consumer-dna-testing-blew-up/. Rockquemore, K. 1988. “Between Black and White: Exploring the ‘Biracial Experi­ ence’.” Race and Society 1, no. 2: 197–212. doi:10.1016/S1090-9524(99)80044-8. Rodriguez, C. 2000. Changing Race: Latinos, the Census and the History of Ethnicity in the United States. New York: New York University Press. Rodriguez, C. 2009. “Counting Latinos in the US Census.” In How the United States Racializes Latinos at Home and Abroad. Edited by José A. Cobas, Jorge Duany, and Joe Feagin, 37–53. London: Paradigm Publishers.

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Root, M. 1996. The Multiracial Experience: Racial Borders as the New Frontier. Thousand Oaks, CA: Sage Publications. Schneider, M. 2020, August 18. “Cities Sue Census Bureau Over Ending 2020 Head Count Early.” AP News. Accessed February 19, 2021. https://apnews. com/article/los-angeles-ca-state-wire-tx-state-wire-lawsuits-wa-state-wire-a3f9ad 6c778a6a9a205999017f27e2cb. Snipp, C. 2003. “Racial Measurement in the American Census: Past Practices and Implications for the Future.” Annual Review of Sociology 29: 563–588. doi:10.1146/ annurev.soc.29.010202.100006. Stokes-Brown, A. 2012. “America’s Shifting Color Line? Reexamining Determinants of Latino Racial Self-Identification.” Social Science Quarterly 93, no. 2: 309–332. doi:10.1111/j.1540-6237.2012.00852.x. Taylor, P., M. Lopez, J. Martínez, and G. Velasco. 2012, April 4. “When Labels Don’t Fit: Hispanics and Their Views of Identity.” PEW Research. Accessed Feb­ ruary 10, 2019. http://www.pewhispanic.org/2012/04/04/when-labels-dont-fit-hispa nics-and-their-views-of-identity/. Ungar, B. 1997, April 23. “Statement on the Statistical Agencies Collection and Reporting of Race and Ethnicity Data.” Testimony Before the Subcommittee on Government Management, Information, and Technology Committee on Govern­ ment Reform and Oversight. House of Representatives. Accessed February 15, 2019. https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-97-92/pdf/ GAOREPORTS-T-GGD-97–92.pdf US Bureau of Census. 2022, March 10. “Census Bureau Releases Estimates of Undercount and Overcount in the 2020 US Census.” Press Release Nr. CB22-CN.02 US Bureau of Census. 2021, August 12. “The Chance that Two People Chosen at Random Are of Different Races or Ethnicity has Increased Since 2010.” https:// www.census.gov/library/stories/2021/08/2020-united-states-population-more-racia lly-ethnically-diverse-than-2010.html. US Bureau of Census. 2019. “US and World Population Clock.” Accessed February 1, 2019. https://www.census.gov/popclock/. US Bureau of Census. 2018, January 26. “Census Bureau Statement on 2020 Census Race and Ethnicity Questions.” CB18-RTQ.02. 2018. Accessed February 1, 2019. https://www.census.gov/newsroom/press- releases/2018/2020-race-questions.html. US Bureau of Census. 2017, March. “Research to Improve Data on Race and Ethni­ city.” Accessed February 10, 2018. https://www.census.gov/about/our-research/ra ce-ethnicity.html. US Bureau of Census. 1989, November. 200 Years of U.S. Census Taking: Population and Housing Questions, 1790–1990. Washington, DC: US Government Printing Office. US Department of Commerce. 2020, September 18. The Acceleration of the Census Sche­ dule Increases the Risks to a Complete and Accurate 2020: Final Management Alert No. OIG-20–050-M. https://www.oig.doc.gov/OIGPublications/OIG-20-050-M.pdf. US Supreme Court. 2019. Department of Commerce et al. v. New York, et al. https:// www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf. Wang, H. 2018, January 26. “2020 Census to Keep Racial, Ethnic Categories Used In 2010.” National Public Radio. Accessed February 12, 2019. https://www.npr.org/2018/01/26/ 580865378/census-request-suggests-no-race-ethnicity-data-changes-in-2020-experts-say? t=1550174248395. Wang, H. 2017, November 23. “How The U.S. Defines Race and Ethnicity May Change Under Trump.” National Public Radio. Accessed February 12, 2019.

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https://www.npr.org/2017/11/22/564426420/how-the-u-s-defines-race-and-ethnicity­ may-change-under-trump. Watzlawik, M., N. Pizarrosso, D. Guimarães, N. Guimarães Doria, M. Han, C. Ma, and A. Jung. 2012. “First Names as Signs of Personal Identity: An Intercultural Comparison.” In Proceedings of the 10th World Congress of the International Association for Semiotic Studies, 1159–1176.

6

Applied Toponymy in the

United States

A Compendium of the History and Policy Development of Geographic Names and Naming Roger L. Payne

Introduction For place names, the name and circumstances of naming reveal valuable insights into culture and history, becoming markers that preserve and protect culture (Payne 2021: 4). One identifies with “names” or labels assigned to landmarks in one’s environment where these names become interwoven in one’s development, creating a sense of place. So, clearly geographic names become intrinsically part of how individuals, groups, and communities mark their identity. This function provides a degree of understanding as to how and why bestowing geographic names is inherent and a critical factor in group identity. This aspect illustrates further why there are idiosyncratic and often irrational responses to changing a geographic name (even by due process), as well as often extreme resistance openly and subversively when a people, nation, or cultural area is the subject of migration or forcible settlement by another nation or group, resulting in mass name changes. This creates problems for the use of geographic names by international organizations; while recognizing differences and often using multiple names, most organiza­ tions use the official name recognized by the nation as controlling a particular territory. Geographic names (GNs) are how we describe and understand the landscape by naming landmarks in this undifferentiated spatial environment. For effective communication there must be consensus as to what exactly the name refers and what meaning it conveys. When there is no consensus, or when the meaning conveyed can be misinterpreted, there is a need to apply a mechanism of standardization to the namescape. The concepts of standardization began out of necessity with weights and measures and were then extended to ensure the interchangeability of a variety of items associated with today’s lifestyle. The concept of standardization was then adopted and applied to more abstract concepts, such as language, and hence, geographic names. GNs are considered to have two parts: a specific term, and a generic term. The latter describes the type of feature, while the former is the name given by the bestower. Both parts together constitute a DOI: 10.4324/9781003431510-6

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name, and both are standardized together. There are numerous examples, most of which are intuitively obvious, such as the Potomac River (West Vir­ ginia, Virginia, Maryland, District of Columbia, USA) where “Potomac” is the specific term and “River” is the generic term describing the type of fea­ ture. Most forms in Germanic Languages follow the form of putting the spe­ cific term first followed by the generic term. However, there are numerous exceptions worldwide, such as Mount Shasta (California, USA), and Mount Cook (New Zealand; also officially Aoraki, its Ma-ori name). In Romance languages, often the generic term appears first, followed by the specific term. Examples include Rio Grande (Texas, New Mexico, Colorado, USA—note the absence of the diacritical mark officially in the “i”, an Anglicization, whereas Río Grande (Aguada, Puerto Rico, USA) does have the correct Spanish diacritical mark). This illustrates the policy of the US Board on Geographic Names using local preference rather than correcting for grammar. There are numerous cases where there is no specific term, merely the generic term preceded by the definite article, and historically referenced toponymically as a nonce occurrence, but not so much now. There are rare occurrences where there is no generic term, such as El Capitan (Yosemite National Park, USA) where the definite article is coupled with a symbolic reference, in this case, noting the stature of the feature (reportedly the Spanish adaptation of an indigenous term—note the lack of the diacritical mark, “á”, officially). The identification of generic terms by category, and their application to a feature, is part of a national name authority’s policies. Although these policies vary considerably in their strictness, in fact, there are no official governmental definitions. This means that while various organizations have lists of geo­ graphic terms and definitions, they are only used internally. The reason for the absence of overarching official policies is that defining feature types is an application-driven process that varies greatly within organizational require­ ments and perceptions. To make matters even more complex, it is entirely possible for a single named feature to have multiple named features of similar and diverse types on or within it. Accordingly, a named mountain might not only have various geographical names, it might also have one or more sepa­ rately and differently named peaks, valleys, streams, etc. Given this complexity and variety, full agreement with regard to the application of a GN is almost impossible to attain. Therefore, there must be a mechanism of achieving consensus regarding the written form and orthography of the name applied to a geographic feature. This mechanism is standardization. Toponymic standardization is the uniform use of the written form of a GN as applied to a particular feature. The list of domains where standardized GNs are vital is virtually endless. From national security, emergency preparedness and critical response to tourism and leisure travel, the importance of standardized GNs extends well beyond cartographic applications. The scholarly investigation of the use of GNs for “providing solutions to ‘real world’ problems is applied topo­ nymy” (Payne 2001: 293).

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A Chronology of Applied Toponymy The chronology of applied toponymy begins generally in the mid-19th century. The first real discussion of a need for standardization occurred at the First International Geographic Congress in Antwerp, Belgium in 1871. Later, in 1874, the Universal Postal Union stressed an obvious need for standardized names of cities. However, later, at meetings of the United Nations Group of Experts on Geographical [sic] Names (UNGEGN), attempts to address this mandate were thwarted by the contentious matter of whether to use exonyms or endonyms. Exonyms are names of places in a language other than that of the host country, while endonyms are names in the language of the host country. For example, Roma is the endonym for the Italian city English speakers call Rome (an exonym). Another example is the endonym New York which has a Spanish exonym Nueva York. There is not much difficulty in deciphering the relationship between these exonyms and endonyms because of their surface similarities, but what about the endonym Krung Thep, which has the English exonym Bangkok? An argument for using exonyms for stan­ dardized GNs was that the names must be easily discernable on maps or other official documents for all language-users and not simply those within the country in question. An argument for using endonyms was that official documents featuring standardized GNs should appear in the official or national language of the country, including the names of geographic fea­ tures. In theory, all agree that endonyms should be used. However, the debate continues because some argue that products and usage within a country (linguistic area) must use, in many cases, local exonyms since in specific applications the most important aspect is immediate comprehen­ sion and understanding with minimum confusion, citing emergency response as an obvious reason. In the 1890s, the first national committees for standardizing the form and orthography of geographic names appeared. The first such committee was the US Board on Geographic Names (USBGN) in 1890. The second was in 1892 in the United Kingdom, and officially in 1919 as the Permanent Committee on Geographical [sic] Names (PCGN). The third was the Geographical [sic] Names Board of Canada in 1897. Later, standardization of GNs was addressed in various forms by the International Cartographic Committee in 1909; the International Hydrographic Conference in 1919; and the Fifteenth International Geographic Conference in Amsterdam, The Netherlands in 1938. By the 1950s, the International Congress of Onomastic Sciences (ICOS) and even the Civil Aviation Organization (CAO) had become interested in geographic name standardization. In 1956, United Nations members were seeking answers to questions and solutions to problems regarding use and application of GNs. Basic problems to be addressed included treatment of names in multilingual areas, Romanization processes, terminology, standar­ dization procedures within countries including the emotionally charged topic

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of using endonyms or exonyms. In 1959, the United Nations Economic and Social Council (ECOSOC) arranged a meeting with six of the world’s most noted experts on geographic names, and in 1960 that group recommended a conference on the standardization of geographic names. The first conference was held in Geneva, Switzerland from September 4–22, 1967. The Group of Experts (UNGEGN) was created to deal with research and existing problems through the activities and actions shared by national name authorities. Initially it was believed by some that the UN would become an adjudicating body specifically for transboundary features, or in instances where multiple claims and other means of reference yielded more than one name applied to the same feature. Examples include the Falkland Islands (UK) or Islas Malvinas (Argentina); Sea of Japan (Japan) or East Sea (Republic of South Korea); Persian Gulf or Arabian Gulf (while the former is official to most the latter is widely used). However, UNGEGN decided not to be an adjudicating body under any circumstances. Instead, it encourages international standardization through strong programs of national standardization (Resolution IV, First Conference, September 1967),1 and offers assistance and advice if requested. UNGEGN conferences (UNCSGN) on standardizing geographic names are held every five years and are formal meetings where each member nation sends an official delegation. Every two years, experts assemble in meetings, which are less formal than a conference, and the attendees are experts in toponymy rather than official country delegates. Much of the work presented at UNGEGN meetings is in the form of reports and informational papers on the activities, developments, and implementations of the various member countries. Additional progress in national programs of standardization is accomplished via the UNGEGN Working Groups, of which there are presently nine. Working groups are created as needed and disbanded as they complete work or are no longer needed. One active working group contributing to national programs of standardization is the Working Group on Training offered by UNGEGN representatives or offered by members of a particular UNGEGN Division. UNGEGN operates under geographic and linguistic divisions established by the UNCSGN. Currently there are 24 such divisions, and countries may be members of more than one division in which they might have linguistic or geographic interest. For example, the United States is a member of the USA/Canada Division, Latin American Division, and Asia- Southwest Division (American Samoa). France is a member of the Romano-Hellenic Division and the French-Speaking Division. Along with its conferences, UNGEGN also issues numerous publications which encourage standardization. One such publication is the “Manual for the National Standardisation [sic] of Geographical [sic] Names” where gen­ eral information can be found and applied. In addition, UNGEGN encourages the development and implementation of “Guidelines for Map and Other Edi­ tors”. Thus far, 39 member countries have followed suit and have indicated how standardized names are treated within their nation. As of 2021, 136 countries have some sort of names standardization organization.

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Another international organization involved heavily in providing instruction for standardizing GNs is The Pan American Institute of Geography and His­ tory (PAIGH). PAIGH has existed in various forms since 1922. It was officially established in 1950, one year after the Organization of American States (OAS) was founded. The PAIGH was the first specialized organization of OAS. Today, there are 21 member States with five permanent observer States expressing an interest in scientific investigations in the Americas. The organi­ zation is highly visible and decisively contributes to the advancement of the sciences associated with its mission and goals. PAIGH is divided into and sup­ ports four commissions: Mapping; Geography; History; and Geophysics. PAIGH’s Working Group on Geographical [sic] Names operates under the support and direction of the Mapping Commission. The working group has been active since 1987 and has provided continuous consultative service to member States on a one-on-one basis. The PAIGH Working Group also offers instructional services, has trained more than 600 students in applied toponymy, and has helped to establish programs of standardization in numerous member States. An online training course is in development, and the PAIGH training course was accepted by UNGEGN in 1996 as an official training course. Further, in the USA, there is an organization known as the Council of Geographic Names Authorities (COGNA). Through this organization, the various State and Territorial Name Authorities conduct joint activities, research, exchange ideas and technology, and provide training. There is an annual meeting held in a different member State that serves as a forum for presenting papers as well as debating issues and solving problems at local, State, regional, and national levels. Since 1977, there have been 42 COGNA conferences. The conferences are the only avenue where the State and federal geographic names authorities can meet to share information on place-naming principles, policies, procedures, and other aspects of toponymic issues. The forum provides the opportunity for COGNA to make recommendations to the USBGN and/or associated federal and State agencies. Members from aca­ demia, and anyone with an interest in any aspect of geographic names, are invited to participate in the annual event. Despite the progressive introduction of these transnational institutions, the accepted preferred mechanism for achieving standardization for GNs has been establishing, by law, a national committee of representatives from various departments and agencies of the national government. Standardization pro­ vides clear references, generally error free, that allow precise communication through a mutual understanding of meanings. It also assists with the goal of international relations and cooperation.

The Standardization of Geographic Names Establishing a program of GN standardization is often less problematic than imagined. In almost every country, the work is already being done, but by several government offices creating duplication and wasting resources.

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Consolidation into one program of cooperation allows consistency and optimization of resources. This consolidation is essential to help reduce the degree of confusion created by different naming policies. These include inconsistencies in the orthography among names; the use of different names for the same feature; and the use of the same name for different nearby features. Such naming conflicts reduce communicative clarity and can lead to critical misunderstandings. Generally, there are two acceptable methods of achieving national standardization for applied toponymy. One method is to create a national committee by national law. This committee is then given institutional power to apply all aspects of standardizing GNs. This route is the preferred and desir­ able means of achieving national standardization. In the absence of such a law, a pre-existing agency of the national government can be selected to function as a de facto authority for standardization of GNs. This method can be either a permanent arrangement or temporary intervention. Often, though not required, a nation’s Mapping Agency serves such a role. However, for this second method to be effective, there must be agreement throughout the national government agencies that the identified agency will be the authority, and all must comply. It is best (and should be required) that a written agreement is created which clearly indicates the agency responsible to which all other agen­ cies are signatory. Whichever of the two above-mentioned methods is followed, there must always be free and continuous exchange of information to meet the changing needs of the national namescape. It is important to mention that the UNGEGN manual offers a third standardization method whereby a decentralized program is established loosely along the lines of various agencies and organizations. Each of these groups is “allowed” to provide standardized names for categories over which it has authority and responsibility. At the same time, some sort of centralized organizational and procedural system is necessary for processing. Although this method could work in theory, in practice, it almost never succeeds and is therefore not recommended here as a viable means of achieving standardized GNs. Once one of the two suggested methods is in place, principles, policies, and procedures of operation must be established. These operational guide­ lines will vary tremendously in accordance with each individual country’s requirements. The principles that define a country’s philosophy and practice for standardizing GNs are rarely changed or amended. Examples of issues these principles address include the following: 1.) what categories of names are and are not to be included (e.g., both physical and cultural; all physical and some cultural; only physical and no cultural, etc.); 2.) what alphabet is used (Roman, Cyrillic, etc.); 3.) how should Indigenous names be handled; 4.) how much attention should be paid to local use; 5.) what procedure should be followed with multi-national names; and 6.) should each feature only be allowed one name (univocity) or are multiple names possible. These principles are often related to the individual language policies of a nation.

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The policies in a country with one official language will be different than those of an officially multilingual nation. In nations where there are two or more official languages, there often must be more than one official name. Examples include: Aoraki (Ma-ori)/Mount Cook, New Zealand; Capetown/ Kaapstad (Afrikaans), and while not yet official, the Khoi name is //Hui ! Gaeb (South Africa has 11 official languages with Afrikaans and English used ubiquitously and the others used regionally); Genève (French)/Genf (German)/Ginevra (Italian)/Genevra (Romansh)/ Geneva, (the unofficial, but widely used English exonym), Switzerland; Helsinki (Finnish)/Helsingfors (Swedish), Finland. Despite the variation that exists between countries, within a country these policies provide uniformity in the decision-making process of standardization. Such policies are developed usually cooperatively between the committee (or designated agency) and the staff. They can change or be amended in con­ cordance with the country’s overall shifts. Some examples of policies that tend to alter overtime include the regulations and procedures for introducing, deleting, or altering commemorative name rules; pejorative and offensive names; and Indigenous names. In addition to the naming principles, the staff of agencies responsible for the standardization of GNs also have an internal set of operational procedures to define the processing methodology, the usage rules, as well as methods for field investigation, verification, automation, maintenance, and promulgation.

The US Board on Geographic Names: Between Standardizing and Regulating Geographic Names Since its inception, USBGN decisions and policies have been legally binding to the Federal Government of the USA, but do not apply to the maps and products produced by individual States. To ameliorate existing local pro­ blems of toponomy and to prevent, to the extent possible, problems from developing, the USBGN has encouraged active toponymic mitigation regarding GN problems through the establishment of State Name Autho­ rities. Moreover, the paramount policy applied by the USBGN has always been that of local use and acceptance. This policy provides common ground in the decision-making process and an appropriate segue to national stan­ dardization. Each State and Territory of the USA has some form of author­ ity for dealing with applied toponymy. These bodies vary greatly in composition, organization, and activity, ranging from legally established boards and committees to advisory committees and State agencies charged with the task of making recommendations. However, no matter their size or composition, all these bodies have the same goal: to achieve standardization of GN in concert with the USBGN.2 Examining a condensed history of some of the evolving policies of the USBGN is useful in understanding applied toponymy in the United States. Some of the more high-profile policies will illustrate obstacles and methods

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of solution. It is important to recall that the scenario will be different from country to country because of differing requirements. Additionally, members of any committee will no doubt interpret policy intent differently and members of committees change periodically. Policy application is subject to change accordingly. Before the establishment of the USBGN, it had become obvious that different names were being “assigned” to the same features on maps produced by various Government-sponsored expeditions to the wes­ tern territories of the United States in the decades following the American Civil War. To rectify this, and other related toponymic discrepancies encountered by the US government in producing maps and other products, the USBGN, the first committee for standardizing geographic names, was established by Executive Order Number 27-A (28) on September 4, 1890. Since then, the USBGN has been rendering decisions for specific problems associated with nomenclature in the United States and for names throughout the world affecting the interests of the United States—without, however, overriding names within a country established by that country’s name authority. Throughout its history, the USBGN has always been principally a reactive body, meaning it responds to proposals and inquiries but only rarely initiates name actions. From its inception, USBGN has been charged to ensure the standardization of GNs “throughout the Federal Government” (Harrison 1890). The Execu­ tive Order was the culmination of more than six months of discussion and informal meetings over the serious and growing problem of applying different names to the same geographic feature on the proliferation of maps and charts produced by the various bureaus of the Federal Government. Despite its longevity, one fundamental question has faced the USBGN almost since the beginning of its operation: is the function of this agency to standardize or to regulate? To many, this matter is a non-issue, a question of semantics. How­ ever, to others, it has clearly been a critical issue. There is no doubt that some members of the USBGN have viewed its policies as having more enforcement authority, while other members have tended to lean more toward interpreting USBGN policies as recommendations. According to various thesauri, “stan­ dardize” and “regulation” are close enough to be used as alternate words for one another. Since the meanings are close, the problem then is one of per­ ception, and perception is related to interpretation of the USBGN’s policies. Historical information about USBGN policy-making may provide much needed context for this interpretation. The USBGN’s initial set of policies were formulated in 1890 just before the Executive Order was issued by President Harrison. The first original policy indicated that the spelling and pronunciation (pronunciation was later removed)3 in local use should be adopted. Thus, from the outset, the USBGN advocated achieving standardization by using local forms of names for all federal products. This philosophy was further enhanced by the second policy, which addressed the issue of name changing. Once again, it was stated that the present-day local use should prevail, even when an

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original form of a name, through whatever means, had changed. Taken together, these policies would seem to indicate that the USBGN seemingly was not regulating; indeed, this stance allowed grammatical and ortho­ graphic inconsistencies to prevail, if a preponderance of local use and application could be established. Policy three introduced the concept of “variant names” and indicated that some may be in local use as well. Despite this variation, from the beginning, the USBGN supported univocity without, however, specifying language since there is no official language in the United States. Policy four formulated the following remedy for policy three: when two or more names were in local use, the most appropriate and euphonious option should be used. Unfortu­ nately, there was no attempt to explain what was meant by “appropriate”. Here again, the policies are clear indications that, at least initially, the USBGN did not intend to regulate by decreeing universal change based upon any precept related to grammar or orthography. Policy five is a more equivo­ cal case. This policy clearly indicates that the possessive form is to be avoi­ ded, but does not provide reasons. Some might argue that in the case of this one particular concept, the USBGN flirted with regulation. Application of that policy may even have contradicted, or at least provided an exception to, the local use principle apparent in the previous policies. The potential conflict was not present in the last two policies: policy six stated that Roman char­ acters were to be used; and policy seven made a somewhat less-than-scientific stab at transliteration. After carefully considering the needs of the Federal Government and the advice of appropriate scholars, the first policies enacted by the USBGN were singularly designed to reduce the confusion plaguing federal maps and documents by using locally preferred names. Most would agree that this is problem solving and not regulating. Just one year later, the line between standardizing and regulating the Nation’s toponymy had become much less clear. In May 1891, the USBGN “suggested” that all compound words used in GNs be simplified by combi­ nation, and the use of hyphenation was abolished (Mendenhall 1891). Exam­ ples included La Fayette, which subsequently became Lafayette; and El Dorado, which was changed to Eldorado. In similar fashion, the USBGN determined that New Castle was always to be written Newcastle. Further­ more, the USBGN announced that throughout the country Vermillion or Vermilion was to be spelled with only one “l”. The changes did not stop there. By October 1903, the USBGN had decreed that all forms of the name Big Horn were to be written as one word (i.e., Bighorn). These changes were not without logic or reason. In the case of Vermilion, for example, no doubt the members were attempting to use standard orthography. In the case of Newcastle, it is likely that the change was motivated by the desire to display an obvious placename and to avoid the confusion of a descriptive term that the two-word form might suggest. However, to many observers, the USBGN was moving beyond their mandate of reducing confusion and treading into the realm of making universal decrees and dictating orthography.

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Later in 1891, the USBGN made even more sweeping decisions that ignited local protests. In June of that year, the USBGN ruled that GNs in the United States containing the word “center” would always be spelled “center”, not “centre”. Further, in the suffix “-burgh”, the final letter “h” was to be elimi­ nated, and in the suffix “-orough”, the “ugh” was to be removed. This was too much for the general public, as well as for some private map and atlas companies. Clearly, the USBGN had overstepped its boundaries. In protest, the authorities in Pittsburgh, Pennsylvania, USA, started a campaign to restore the original form of its name. Acquiescing to this staunch resistance, in July 1911, the USBGN issued a terse statement indicating that “burgh” may be used if there are compelling reasons to do so. The 1891 decision for Pitts­ burg was accordingly reversed and the official spelling was restored to Pitts­ burgh (USBGN 1911). However, in September 1916, the same universal ruling regarding the use of “center”, “burgh”, and “borough” was reaffirmed (Braid 1916). Various issues of local identity or local preference eventually caused the evolution of principles and policies to favor local use and preference as para­ mount, leading to the adoption as official names those approved locally unless they are in direct violation of Board policies. Existing evidence suggests that the USBGN might have been heavily influ­ enced at this time by the Post Office Department in its quest to shorten and standardize names of populated places. Be that as it may, during this period, the USBGN demonstrated a reluctance to abide entirely by its original localuse policies of 1890. In 1891, the USBGN also made its first statement against the use of diacritical marks—marks that appear with orthographic or pho­ netic characters such as accents, circumflexes, and umlauts—for use with domestic names. It justified this position by indicating that the use of these marks in the United States was rapidly disappearing and it would be impos­ sible, even if desirable, to stop this development (Mendenhall 1891). Follow­ ing this logic, the USBGN implemented the universal change from Cañon to Canyon. At the time, there was no opposition to this change, although today the policy is to allow and use whatever diacritical mark is prevalent in the local form of the name regardless of the language of origin. This was one of only a few universal decrees issued by the USBGN over its long history. Another such policy was stating that all Russian names in Alaska that ended in “off”, “ov”, “ow”, or “of” would all become “of”. In another universal decree, all occurrences of the word Blackfeet in geographic names were changed to Blackfoot. In 1932, a synopsis of these universal changes was reported in the USBGN’s Sixth Report under the title “Elimination of Inconsistencies”. It was noted that these changes had been applied to GNs “to affect some reform in geographic nomenclature which seemed highly desirable” (Bond 1933: 93). The report summary indicated “in a rather large number of instances, that local usage was firmly established and would not change to accord with the proposed reform in spelling” (Bond 1933: 18). This was, of course, a rather gentle way of addressing the public outcry and accusations

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of federal toponymic regulation. The summary further indicated that the policies of 1891, subsequently reaffirmed, were meant to be guidelines and not rules, and that the USBGN reserved the right to depart from these as deemed necessary. None of these universal changes were rescinded specifically, but many of the decreed changes were gradually restored by the USBGN’s policy of processing each controversy case-by-case on its own merits. Local use once again became paramount, reducing public fears of regulation and restoring people’s confidence in the process of standardization. Thus ended the USBGN’s period of universal changes. Since then, such uni­ versal changes have not been issued except in cases regarding pejorative names. In 1962, the Secretary of the Interior asked the USBGN to replace universally the pejorative form of “Negro” in all GNs within the USA. The USBGN readily agreed and approved the change in 1963. In 1974, the USBGN took similar action regarding the pejorative form of “Japanese”. A little over two decades later, the USBGN was petitioned in 1997 to do the same with the use of the word “squaw”*. In November 2021, the Secretary of the Interior issued Order 3404 declaring officially the word “squaw”* to be derogatory and outlining for the Domestic Names Committee staff procedures to change all occurrences (under the Board’s jurisdiction) of “squaw”* in geographic names. In reaction to this petition, the USBGN, in consultation with the Secretary of the Interior, reiterated its policy against offensive names, and encouraged proposals to change such names. Developing a specific list beyond the three words men­ tioned can be subjective. For that reason, the USBGN has remained true to its reactive policy tradition: any name considered to be offensive or pejorative may be submitted to the USBGN for review on a case-by-case basis. To assist in this procedure, in November 2021, the Secretary of the Interior issued Order 3405 to identify and address by advisory group names on Federal lands that could be considered offensive or derogatory, and to initiate proposals (case-by-case) to change such names. So, the USBGN has now become more proactive (at least on Federal lands) in addressing existing geographic names that could be deemed as unacceptable or offensive to a particular group. This policy decision was made when it was determined that there was no universal replacement term for “squaw”* as an offensive term. In the case of “squaw”*, all interested parties, including various tribal councils, have indicated a desire to submit specific name changes and have been encouraged to do so. Since the late 1990s, the USBGN has received almost 350 proposals to change GNs using that term; all of these petitions have been processed and the GNs accordingly changed. Almost 150 of these changes have involved utilizing specific parts of the previous GN in the local indigenous language in combination with generic terms that identify the feature type and are easily understood by users. In rare cases, the proponent of these name changes has insisted that no generic term be added to either a oneword or two-word name from the indigenous language. This practice is discouraged, however, because to most of the GN-user community, the geographic feature type (e.g., a stream, hill, valley) will remain unknown.

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Examples include Dawussuua Ashkaate (Montana, USA—from the Crow language meaning “Million Dollar Creek”); Tahc’a Okute Wakpa C’ikala (South Dakota, USA—in the Lakota language, “Tahc’a Okute” means “deer hunting ground”, “Wakpa” means “river”, and “C’ikala” means “little”); Keneʼewa (New Mexico, USA); Bde Maka Ska (Minnesota USA—Dakota for “white banks lake” or “white earth lake”); Doso Doyabi (Nevada, USA— from the Shoshone language meaning “white mountain” and refers to the presence of snow almost year round); Bgoji-ziibiinhs (Michigan, USA—means “stream in the wilderness” in Anishinaabe); and Da-ek Dow Go-et Wa Tah (California, USA—named in association with the Washo name for the summit southwest of the stream). It is clear from these examples approved for official use in the USA that unless one understands the indigenous language from which the name is derived, one cannot determine the feature type. This situation has led to controversy and debate where purists speaking the lan­ guage (with others who agree) believe that the name should be as it is in the language. Other groups insist that the addition of a generic term that describes the feature and is easily understood by the majority of product users achieves the aim and goal of applied toponymy, which is useability and clear communication, while still preserving the cultural heritage of the group who bestowed the name. The debate continues, with only a handful of indigenous names approved without adding a defining generic term.

Specific Challenges in the Standardization of Geographic Names Indigenous Names Indigenous names are of increasing importance as a factor in the policies and decision-making process of the USBGN and indeed throughout the Americas. The UNGEGN established a working group devoted to the pro­ motion of indigenous and minority group place names in 2002. Since 2012, it has been known as the “Working Group on Geographical [sic] Names as Cultural Heritage”. However, as early as the 1990s, the USBGN had already established a subcommittee to develop a policy for “Native American Names” or “Tribal Geographic Names” as the policy has been called since 2016 in alignment with terminology used in the Federally Recognized Indian Tribe List Act of 1994, as amended (25 USC 479a-1). On matters of applied toponomy, the USBGN “honors the government-to-government relation­ ships that exist between Tribes and the Federal Government” (Indian Tribe List Act of 1994). Tribal governments therefore act in the same capacity as State Name Authorities on matters of toponymy. Many national name authorities outside of the United States are also becoming increasingly sensitive to names from indigenous languages and have changed long-standing names to reflect original and multi-national preferences. An international example of such a name-change process can be seen in a place once known as Salisbury. Previously called Fort Salisbury, in

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1890 the location was named for then British Prime Minister, Lord Salis­ bury. At the time of its founding, Fort Salisbury was located in what was then Mashonaland, and what eventually became Southern Rhodesia, before becoming Rhodesia, and then Zimbabwe in 1979. The name Zimbabwe is an indigenous name that refers to an ancient city in the southeastern part of the country. In 1982, Salisbury was changed to Harare, a name inspired by a group of people in this generally Shona-speaking region. This scenario clearly indicates the tendency to restore the original indigenous references as names with local peoples identifying with the land. In New Zealand, Mount Cook, the country’s highest peak, was named in 1851 by Captain Stokes to honor British Captain Cook, the famed explorer of the South Pacific. Cook first arrived in New Zealand in 1769. Although he sailed near the mountain which would later carry his name, he never actually sighted it. The Indigenous name for this feature is Aoraki. In 1981, Ma-ori was legally declared the official language in New Zealand. English is the national language which is ubiquitously used throughout. The status difference between the two languages is reflected in the positioning of the GNs. The two names are now used simulta­ neously. However, Aoraki appears first in publications, reflecting Ma-ori’s status as the official language, and Mount Cook is second. In Australia, a similar GN development can be observed with Ayers Rock which is now officially Uluru/Ayers Rock. The former is reportedly merely a label, a reference. Henry Ayers was Chief Secretary of South Australia when the feature was named by Australian officials in 1883. Like in the case of Aoraki/Mount Cook in New Zealand, in Australia the indigenous name also appears first in official documents. However, unlike New Zealand, Australia has no official language, though English is the national language spoken throughout the country. A high-profile case in the United States involved a name change to restore an indigenous name, replacing the commemorative GN Mount McKinley to Denali. The initial proposal to change the official GN of the highest peak in North America came from the Alaska State Name Authority in 1976, but a decision was blocked at the “11th hour” by the US Congress which continually called for further investigation. Resistance towards altering the name was linked to the fact that the feature had been named after a former US President, William McKinley. The investigation became politically contentious, and it was not until 2015 that the change to Denali was made by Secretarial Order No. 3337 (Secretary of the Interior USA). As of this act, the original indigenous name Denali, which report­ edly means “the Great One” in Athabascan, was officially restored. The movement to restore this indigenous name was local, which gathered momentum reaching the State government level. The resistance, in this case, was politically motivated and applied over considerable time until opinion regarding indigenous name application evolved in the USA to a more active and restorative stance.

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Commemorative Names The USBGN has always discouraged commemorative naming. By 1974, the policy had evolved to the point that the USBGN agreed that “there will be no exception to the policy of not naming features for a living person” (Minutes of the Domestic Names Committee—DNC, May 14, 1974). This was a milestone, establishing the rigidity of the policy in reference to those who sought exceptions. Among critics, the USBGN’s stance was con­ sidered an unfortunate regulatory act. Commemorative naming is a phe­ nomenon that has historically been considered a right of explorers and first visitors to a feature (such as hikers and climbers), and now, critics com­ plained, the USBGN was disallowing this right absolutely. To the major­ ity, the evenhanded application of a nationwide policy that precludes a lasting memorial during an individual’s lifetime was a natural evolution of the USBGN naming principles and standardization objectives. The discus­ sion over commemorative naming became particularly polarized in 1963 when Cape Canaveral, one of the oldest place names of European origin in North America, was changed to Cape Kennedy to honor assassinated Pre­ sident John F. Kennedy. While it was widely agreed that President Ken­ nedy deserved such an honor, changing the name Cape Canaveral proved very unpopular, and a movement began immediately to restore the name. President Kennedy was extremely popular and the resistance to changing the name stemmed from known idiosyncratic responses to changing geo­ graphic names and early development identification with names of places. Further, Cape Canaveral was one of the oldest continuously applied names of European origin in North America. It was not until 1972 that the name was officially restored by decision of the USBGN. In fact, by 1982, the USBGN began to hint at discouraging commemorative names altogether. Two years later, the USBGN had drafted a new policy. Not only were commemorative names generally discouraged, but nicknames were also disallowed. Moreover, it was required that potential honorees be deceased for at least a year before their names could be considered for a com­ memorative toponym. In addition, to obtain approval, honorees were required either to have direct association with the feature, to have made demonstrated contributions to the community in question, or to have had some degree of positive notoriety. In 1995, the waiting period for placing a petition for an honorific name was increased from one year to five years after the potential name-sake’s death. Clearly, such policies were designed by the USBGN to ensure that those being commemorated are really deser­ ving of the honor.

Conclusion Applied toponymy is the aspect of geographic names used in daily applica­ tions for problem-solving and usage in numerous applications, conventional

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and digital. Programs and activities supported by successful applied topo­ nymy are varied, but some broad categories are obvious, including emer­ gency response; all attributes of mapping programs identified by all nations as a critical data layer in mapping; regional and national planning for economic and other development; environmental analysis for project impact possibilities; transportation planning; site selection and analysis; tourism; and all levels of communication. The method for achieving suc­ cess in applied toponymy, that is, the successful application and manip­ ulation of geographic names for stability and continuity in all aspects of government and society, is standardization. The route to organized and ordered applied toponymy (for many nations) involved many organiza­ tions, historically culminating in most countries instigating programs of standardization and committees to manage the standardization of geo­ graphic names. It was only natural that eventually (in 1967) the United Nations would become involved, so that the member States might share and exchange principles, policies, and procedures. Two acceptable meth­ ods exist for achieving a stable, robust, practical, and useful program of standardization. One method is to create a legal body at the national level with authority to develop and act upon policies to achieve standardization. The second method, which is practical and usually as effective, is for one national agency to be appointed (assume) the function of standardizing names so long as all involved parties agree. In many countries, the histor­ ical development of geographic names activity has evolved with changing requirements in the applied namescape. For example, the USA standardiz­ ing committee went through a period early in its development of “experi­ menting” with policies that applied universally to some instances, but over the ensuing decades changed policy to reflect local use and acceptance as paramount. Other countries embrace policies of universal changes as well as adherence to established grammar, while some do not consider grammar requisite. It is well known that processing geographic names for applied toponymy evokes idiosyncratic and often emotional responses. This may be especially true where changing a name is involved. Recently, in the US and beyond, much attention is being given to solving the problem of offensive and derogatory names that might negatively affect a particular group’s identity. Usage of exonyms, rather than the appropriate endonym, has been problematic since international name usage began and has created two polarized positions, from purists citing that there should be no exception to using endonyms to those citing the necessity and practicality of using exonyms within a particular language area, or on products using one language. Today, at least 141 countries have formal national name boards or committees, or at least an agency or office that applies due pro­ cess to establishing standardized geographic names; and though the United Nations has no adjudication authority in settling naming disputes, there are regularly scheduled conferences for the free exchange of policies and information.

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Notes 1 See Natural Resources Canada. 2012. Resolutions Adopted At The Ten United Nations Conferences on the Standardization of Geographical Names. https://unstats. un.org/unsd/geoinfo/ungegn/docs/RES_UN_E%20updated_1-10%20CONF.pdf 2 While most state and territorial policies align with those of the USBGN, a few differences exist. One important difference has often proven to be problematic over the years. Specifically, some States, for a while, expressed that standardiza­ tion should not apply to “insignificant” features. However, the USBGN does not subscribe to this notion that a feature can be too insignificant to justify its exemption from standardization, especially in an automated large-scale environment. 3 Although pronunciation has always been of interest to the USBGN, the concept of providing a key to pronunciation has been historically contentious. In the 20th century, after much intensive research and heated debate, the decision was made not to develop a pronunciation guide for domestic use. It was thought that a phonetic system would not be widely understood, and a non-scientific system could easily misrepresent sounds. Further, it was decided that “it was not the business of USBGN to indicate pronunciation” because such an act might be construed to be a federal regulation (Lang 1989).

References Braid, Andrew (Chair). 1916. Fourth Report of the U.S. Geographic Names Board, 1890–1916. Washington: US Government Printing Office. Bond, Frank (Chair). 1933. Sixth Report of the U.S. Geographic Board, 1890–1932. Washington: US Government Printing Office. Burrill, Meredith. 1989. Washington: Personal Conversation. Gannett, Henry (Chair). 1906. Third Report of the U.S. Board on Geographic Names, 1890–1906. Washington: US Government Printing Office. Harrison, Benjamin. 1890. Executive Order No. 27-A (28). Washington: The Executive Mansion. International Hydrographic Organization. 2019. Standardization of Undersea Feature Names. Monaco: International Hydrographic Organization. Edition 4.2.0. Lang, Solomon (Chair). 1987. Pronunciation Committee, U.S. Board on Geographic Names. Reston, Virginia: US Board’s Files. Mendenhall, T. C. (Chair). 1891. First Report of the United States Board on Geo­ graphic Names, 1890–1891. Washington: US Government Printing Office. Payne, Roger L. 2021. The Outer Banks Gazetteer: The History of Place Names from Carova to Emerald Isle. Chapel Hill, North Carolina: University of North Carolina Press. Payne, Roger L. 2001. “Applied Toponymy in the United States.” Names: A Journal of Onomastics 49, no. 4: 293–299. doi:10.1179/nam.2001.49.4.293. Scientific Committee on Antarctic Research. 2021. International Principles and Pro­ cedures for Antarctic Place Names. SCAR Report No. 41. Cambridge, United Kingdom: Scott Polar Research Institute. Shaw, Sandra (Chair). 1989. U.S. Board on Geographic Names Minutes of February 1989. Reston, Virginia: US Board’s Files. UN Group of Experts on Geographical [sic] Names. 2021. New York. https://unstats. un.org/unsd/ungegn/.

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US Board on Geographic Names. 1911. Decision for Pittsburgh, Pennsylvania, USA. Reston, Virginia: US Board’s Files. US Board on Geographic Names. 2020, 2000, 1995 (Roger L. Payne, Donald J. Orth, et al.), 1987 (Donald J. Orth). Principles, Policies, and Procedures. Reston, Virgi­ nia: US Geological Survey. US Board on Geographic Names. Various dates. Various Cases and Decisions. Reston, Virginia: Board Secretariat. US Congress. 1947. Public Law 80–242. Establishment and Function of the U.S. Board on Geographic Names. Washington: 80th Congress. Chapter 330–333. 1st Session. S. 1262. US Congress. 1994. Public Law 103–454. Washington: 103rd Congress. Indian Tribe List Act of 1994 as amended (25 U.S.C. 479a-1, 108 Stat. 4791–4792). US Geological Survey. 2021. Reston, Virginia, USA: Geographic Names Information Systemhttps://www.usgs.gov/core-science-systems/ngp/board-on-geographic-names.

7

Toponomy and Law Neighborhood Names in Legal Perspective Nestor M. Davidson and David Fagundes

Introduction Conflicts over neighborhood identity are surprisingly common today in cities across the United States. In these conflicts, the question of how a neighbor­ hood is known to itself and to the wider world serves as a synecdoche for fraught dynamics of neighborhood change. Naming conflicts are often sparked by tensions over gentrification but can also be a way of defensively protecting long-standing neighborhood identity in the face of change or a means of distancing a community from other communities. Renaming can also serve to affirmatively bolster assertions of community, especially for immigrant communities claiming recognition. History, demographics, geo­ graphy, architecture, and infrastructure all play roles in defining neighbor­ hood identity, but neighborhood names often serve to focus on and stand as a symbol for these more complex forces. This chapter investigates the underappreciated role of the law in neighborhood-naming controversies. It begins by outlining three such instances where residents of US cities drew the state into brewing conflicts over renaming historically significant urban neighborhoods. The chapter then looks at these vignettes through the lens of toponomy, highlighting reasons why naming serves as a flashpoint for clashes between competing urban communities. Next, it highlights the nonobvious but critically important role law plays in these controversies, showing that even when the state is passive, it remains a central player in disputes. Finally, this chapter considers whether a neighbor­ hood’s name may be thought of as a kind of cultural property and shows how cultural-property framing can bring into perspective both the stakes of these disputes and law’s role in them.

Case Studies in Law and Toponomy Fighting Neighborhood Name Erasure in Harlem Harlem is as iconic a neighborhood as New York City offers, although its significance has morphed over the city’s history. Once Dutch, as its name DOI: 10.4324/9781003431510-7

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hints, the neighborhood welcomed waves of Irish and then Jewish immi­ grants in the 19th century, converting Harlem into the heart of Jewish New York. By the 1920s, however, with the Great Migration and Harlem Renaissance, the neighborhood emerged as the recognized center of the city’s—and the nation’s—Black community. By 1950, Harlem was over 98% Black, and that history is visibly etched in the namesakes of the neighbor­ hood’s major north–south boulevards (e.g., Frederick Douglass, Adam Clayton Powell, and Malcolm X) (Pinkney and Woock 1970; Johnson 1925). Like so much of New York, Harlem has been changing economically and demographically in the last two decades. By 2008, greater Harlem was no longer majority Black, and the trend has only accelerated. Much of this gentrification began in the blocks closest to Central Park, near Columbia University. Progressively, the trend has spread through a neighborhood that stretches, by some reckonings, from Central Park north to roughly 155th Street, and from the East River across to the Harlem River (Adams 2016; Roberts 2010) In the mid-2000s, reflecting—and arguably accelerating—this trend, devel­ opers and real estate agents, most prominently Keller-Williams Realty, began marketing properties roughly below 125th Street under the name SoHa (Ehrenhalt 2017). This portmanteau of “southern Harlem” carried echoes of lower Manhattan’s gentrified SoHo neighborhood. The move to rebrand a portion of Harlem sparked significant local opposition, including street corner rallies and community organizing. Danni Tyson, a real estate broker and member of central Harlem’s Community Board, summed up the reaction when she said, “To me, personally, it’s like trying to take the black out of Harlem. Harlem is Harlem” (Clark 2017). The outcry even led a state senator from Harlem, Brian Benjamin, to advance the Neighborhood Integrity Act, which would have formalized the process of neighborhood naming and pun­ ished those who “advertise a property as part of, or located in, a designated neighborhood that is not traditionally recognized as such” (Ehrenhalt 2017). Despite the pushback—and some claims of community victory when the local Keller-Williams team renamed its office—the new name seems to be sticking. A pediatrician’s office, an Italian restaurant, and a deli all now use SoHa in their names; and Streeteasy, the leading real estate listing service in New York, added South Harlem as a searchable neighborhood name in 2016 (Clark 2017). Escaping “South Central” Despite being a generic-sounding toponym, South Central carries powerful cultural and social associations. When first used in the 1920s, the placename possessed positive associations as it referenced a home to a thriving Black middle class. After recession and job losses hit the area hard in the 1970s, rising crime and gang activity led to the name becoming “shorthand for urban dysfunction”.1 Through film and music, South Central became both

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vilified and romanticized around the world for its association with gangs, drugs, and violence (Gold 2003). By the early 2000s, local residents had tired of the negative associations of South Central, pointing out that despite the name’s pejorative connotations, most of the area’s denizens were from hard-working families who took good care of one another and their properties. As community activist Helen Johnson explained, “There is a lot in a name. … You can say a name doesn’t hurt you, but it does hurt. … A name can destroy you” (Gold 2003). Others pointed out that the designation South Central did not even refer to a coherent neighborhood. Historically, the term derives from South Central Avenue, which runs parallel to the 110 Freeway. However, the name was often used to encompass—and taint by association—distinct areas far to the west, such as Leimert Park (Gold 2003). Johnson happened upon a solution of sorts in 2002: she started a movement to get the Los Angeles City Council to rename the area South Los Angeles. While many local residents supported her petition drive, not all were persuaded of the move’s benefits. Critics mocked the effort as a cosmetic approach to fixing deeper substantive problems; and some local leaders, such as Pastor “Chip” Murray, argued that residents’ efforts would be better spent improving the area than renaming it (Gold 2003). Todd Boyd noted that many residents found pride in surviving in an area with such a dangerous reputation and that renaming South Central would seem to them “an attempt to erase their iden­ tity, to make them disappear” (Gold 2003). The critics lost the debate. As it does with most petitions to rename neighborhoods, the Los Angeles City Council approved the initiative to rename the area South Los Angeles. As of April 2003, South Central exists only in the popular imagination (Leovy 2008; Gold 2003). Recognizing “Little Haiti” The area around Miami’s NE Second Street has been informally termed Little Haiti or Little Port-au-Prince since refugees from the repressive Duvalier regime began arriving there in the 1970s and 1980s. It was not until 2013, though, that local Haitians began lobbying the Miami City Council to define and formally recognize their neighborhood with an official name (Green and Rabin 2013). Haitian community groups sought official recogni­ tion for Little Haiti as a way not only to convey respect for the neighborhood itself, but also to stake out a more powerful presence in a city where they had often been marginalized (Elfrink 2016). Non-Haitians in the area, Black and White alike, quickly organized to oppose the move. This self-styled “preservationist” opposition objected to formally declaring the neighborhood Little Haiti in part because they believed it would efface the neighborhood’s historical identity which was reflected in a different name—Lemon City (Green and Rabin 2013). Oppo­ nents claimed that making Little Haiti official by ratifying the proposed

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adoption of the toponym would represent “nothing more than the theft of documented history” by obscuring the area’s African American and Baha­ mian roots (Smiley 2016). Opponents of the plan also raised concerns that the official naming could “make the area less attractive to potential inves­ tors” (Green and Rabin 2013). Preservationists argued that the city should simply not get involved and instead let locals informally refer to the area variously as Little Haiti, Lemon City, or any of the other popular sobri­ quets. Haitians responded that a lack of municipal recognition would oblit­ erate their community and its contributions to the city. They also suggested that the preservationist opposition was tinged with anti-Haitian prejudice (Elfrink 2016; Smiley 2016; Green and Rabin 2013). When the matter finally came before the Miami City Council, Haitian community groups brought in busloads of supporters, who jammed into the council chambers and crowded the streets outside. Preservationists made their case in the hearing, but the winner was clear: the Council voted unanimously to officially name the area around NE Second Street Little Haiti. By 2017, it had become clear that preservationists’ economic concerns were unfounded. Property values soared, and Little Haiti quickly became Miami’s fastest-gentrifying area. Ironically, the very same groups that had advocated so vociferously for official recognition of the neighborhood name soon found themselves organizing around a different issue: opposing condo developments for wealthy professionals that would supplant affordable housing for the area’s lower-income Haitian community (Iannelli 2017). The varied conflicts discussed above evince some clear patterns. Gentrification is obviously a key theme, as are efforts to use identity to signal separation from others. Some renaming conflicts involve efforts to “rebrand” neigh­ borhoods, as with South Central; or to establish new “brands” for urban infill development. And the desire of a minority group to toponymically promote their identity as with Little Haiti, is a perennial staple of renaming. In all these conflicts, it is clear that naming matters, as research into toponymy, a long-standing and ever-expanding sub-discipline of onomastics, has demonstrated. Naftali Kadmon has noted, for example, that for top­ onomy scholars, place names are understood to inscribe language, culture, and history in the landscape, although the main function of a geographic name is to serve as a semantic label—a signifier onto which other meaning can be imposed. Once affixed, place names play important roles in commu­ nicating the nature of a place. Names thus signal aspects of the larger social context in which naming has taken place, often revealing underlying power dynamics. Place names also serve more mundane functions, facilitating communication, commerce, and services, and hence have been the subject of national and international policy efforts toward standardization (Kadmon 2000) (see also Chapter 6). A recent critical turn in the toponomy literature is particularly relevant to the intersection between place naming and the legal system. That turn emphasizes that those in power control official naming and set the terms

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that define which places “matter”. In the US, this power differential reflects the unfortunate realities of deep historical inequities. Contemporary critical geography scholars see PLACE as a social construct, arguing that there is nothing neutral or natural about the way issues such as who belongs in, and who controls, a given territory and its boundaries are constructed. PLACE instead reflects fluid conditions of power, socioeconomics, race, ethnicity, and gender. In contested processes of imbuing PLACE with meaning, names serve as important signifiers and organizing nodes of power and exclusion, at times accelerating or exacerbating those forces. As Reuben Rose-Redwood, Derek Alderman, and Maoz Azaryahu (2010) argued: [t]he discursive act of assigning a name to a given location does much more than merely denote an already-existing “place.” Rather … the act of naming is itself a performative practice that calls forth the “place” to which it refers by attempting to stabilize the unwieldy contradictions of sociospatial processes into the seemingly more “manageable” order of textual inscription. (454) In other words, the act of naming a place visibly focuses competing social, demographic, and economic forces around a particularly salient marker. The name of a neighborhood, then, can mirror the distribution of neighborhood power and the nature of democracy at the local level. Naming brings together more or less formal means of official recognition of wards, city council districts, business improvement districts, historic districts, and the like. It also channels shifts in governance, demography, and socioeconomic levels in a distinctive way. Neighborhood change is not the same as name change, but the latter often reflects the larger under­ currents of the former. Because names are so visible, they often coalesce as a proxy for questions of economic and demographic conflict while at the same time helping to consolidate, accelerate, or impede neighborhood change. Thus, while names may seem merely cosmetic, they are often both symptoms and causes of deeply felt fault lines that pervade the con­ temporary urban landscape. Naming conflicts touch on many of the most difficult issues faced by modern cities: the economic lure of gentrification along with its displacing effect on long-standing residents; the desire of wealthier communities to wall themselves off from nearby poorer ones, often with stark racial undercurrents; and the yearning for ethnic enclaves to achieve a sense of public acceptance via municipal recognition. This taxonomy of causal forces in turn highlights a number of salient stake­ holders: long-established communities; new residential entrants; economic actors, such as real estate developers and agents; and, of course, the state itself in the form of local governments.

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Law in the Processes of Contested Toponomy Local governments regulate many features of urban life: school districts, police departments, zoning, property taxation, and the like. With neighbor­ hood names, however, one likely imagines a process that operates apart from law. Such names may arise bottom-up from an accretion of stories and folklore shared by a district’s residents. Names may also be imposed from the top down, either by resident associations that seek to inculcate a certain identity, or real estate agents and developers whose agenda is to burnish an area’s reputation (and, in turn, leverage its economic value). Yet law is hardly absent. In reality, local governments take a variety of reg­ ulatory postures with respect to defining and naming city neighborhoods. Such regulation can be overt and formalized, such as municipal ordinances carving out a municipality’s exclusive jurisdiction to declare and name its neighbor­ hoods. Localities may also affect naming less formally by, for example, enabling and even funding neighborhood associations that seek to embrace a particular nomenclature. Whether they bubble up from below or are imposed from above, monikers to describe city neighborhoods are typically the products of extralegal forces. Some US American municipalities have relatively clear legislative and administrative regimes that determine how their neighborhoods are named, reserving for themselves a central role in this process. Chicago is an example of a city with a municipal law at its most interventionist with respect to defining its districts. The city’s local ordinances establish three categories representing different forms of internal organization: 1.) wards—the city’s political districts, each represented by a single alderman whose boundaries move constantly to assure equal representation; 2.) community areas—larger districts with fixed boundaries that the city uses for collecting and analyzing data longitudinally; and 3.) neighborhoods—informal designations of smaller areas that represent local identity on a granular level but are not used for any official purpose. Pursuant to its statutory authority, the city government for­ mally divides Chicago into 50 wards, 77 community areas, and 178 neigh­ borhoods (Chicago 2018). Local ordinances “designate […]. the official community areas and neighborhoods of the City of Chicago”. The city’s classifications of its neighborhoods are reflected in an official map that has not changed since 1993. And while Chicago had the final say in terms of its nomenclature, it based its neighborhood naming decisions on a 1978 Depart­ ment of Planning survey that polled a random sample of local residents about the name of their neighborhood and its perceived boundaries (Chicago 2006). Los Angeles also has a formalized process for identifying neighborhoods, though it permits far more fluidity in renaming decisions to accommodate changing preferences and demographics. Los Angeles’s neighborhoods are marked with official blue city signs that appear on lampposts and street­ lights throughout the city. In the late 1980s and 1990s, all it took to change a neighborhood’s designation was a petition with several hundred local

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signatures and the agreement of the area’s city council member. This led to a frenzy of naming and renaming. In the San Fernando Valley, many names were introduced to give some sense of identity and location within that mas­ sive geographic sprawl (e.g., Valley Village, West Hills, Sherman Park, and North Hills). At the same time, other pre-existing areas within Los Angeles renamed themselves as part of a process to highlight tonier neighboring dis­ tricts. This development saw, for example, areas that lay within less-coveted Van Nuys renamed to become part of neighboring higher-end districts of Encino and Sherman Oaks (Orlov 2009). This process can also become a flashpoint for tension between ethnic groups. When Bangladeshis sought to designate part of Los Angeles as Little Bangladesh, the local Korean commu­ nity objected that the area in question was part of the (then informally designated) Koreatown. The L.A. City Council responded to the conflict by making both Koreatown and Little Bangladesh official neighborhoods, though Little Bangladesh ended up a much smaller area than was originally proposed. In an effort to curb the acceleration of neighborhood renaming, the Los Angeles City Council revised its procedures. Effective January 31, 2006, neighborhoods wishing to change their names were not only required to submit a petition with at least 500 signatures, or 20% of the relevant popu­ lation. They also had to obtain the majority approval of the Rules, Elections, Intergovernmental Relations, and Neighborhoods Committee as well as the full City Council (City Clerk LA 2006). Raising the procedural costs of renaming made the process harder to navigate, but there is no evidence that it has slowed the rate of neighborhood renaming in the City of Angels. Petitions to rename areas—be they ethnic enclaves seeking social recognition or exclu­ sive residential districts seeking to maximize their economic status—continue to come in and are typically rubber-stamped by large city council majorities. Communities in other US cities have also seen substantial changes with respect to neighborhood (re)naming. However, the onomastic developments have taken place on an ad hoc basis rather than with a uniform procedure. When Miami officials came under pressure to designate a part of its jur­ isdiction as Little Haiti, they ultimately did so by passing a City Council resolution. This was the first—and so far, only—time the city had defined and designated a neighborhood by resolution. Boston took an even less formal route for implementing such changes. The municipal government simply posted a page on its official city website to declare and define its various neighborhoods, with no explanation why it chose those boundaries. If law at times overtly intervenes in neighborhood-naming processes, there are numerous other ways that law implicitly facilitates neighborhood naming and renaming. First, consider Business Improvement Districts (BIDs). Although taking a variety of legal forms, these organizations gen­ erally consist of groups of business owners, residents, and sometimes devel­ opers who are interested in improving the civic life of a neighborhood and are granted official status by the state or city to take on this role. Once a group has been formally designated a BID and approved by a vote of local

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stakeholders, it has the authority to levy taxes via special assessments and use those funds to further its operations. BIDs have many different names: Community Benefit Districts, Management Districts, Business Improvement Areas. Regardless of their label, they are a standard feature in most US American cities. A major function of BIDs is to revitalize less economically vital areas. This process often entails redevelopment and gentrification. To achieve their goals, BIDs typically engage in significant rebranding efforts to pique resi­ dential and commercial interest in neighborhoods not commonly regarded as desirable. San Francisco’s newly monikered East Cut neighborhood was named by a Community Benefit District formed in part to stamp that name on what had previously been known as the Transbay District and Rincon Hill (King 2017). In Houston, East of Downtown, or EaDo, has become one of the city’s fastest growing areas, thanks in part to the efforts of an epon­ ymous Management District that branded the neighborhood with its new name. As is often the case, these renamings were controversial. Numerous San Franciscans revolted against the invention of the East Cut as a product of corporate marketing culture that ignored local history and resident pre­ ferences. “I don’t know why they want to rebrand Rincon Hill, which is real and historic and accurate” said Lauri Mashoian, who lives with her family on First Street in a restored industrial building. Denizens of east Houston organized to express their opposition to the Latino area known historically as the Second Ward being erased in the frenzy of EaDo rebranding (Was­ serberg 2019; King 2017; Rose 2012). As Lizbeth Ramirez, a local resident explained: “I personally do not agree with renaming our neighborhood. Renaming our neighborhood means that we are throwing away our history and everything we stand for” (http://eastendmap.pen.io/). These renaming efforts could be regarded as private matters between developers and residents, but this overlooks the central, though covert, role that law plays in these processes. For one thing, the state creates the pathway for the recognition of BIDs, giving them special status that differentiates them from other private groups that also have an interest in a given neighborhood. In so doing, the state places its imprimatur on the BID’s chosen name. Although in such cases, state involvement in naming processes may appear less obvious, they exercise considerable control by enabling public/private entities such as BIDs to redefine neighborhoods or support neighborhood associations that seek to inculcate a particular identity for their zone. When Houston approved the EaDo Management District, and San Francisco ratified the East Cut Community Benefit District, they bestowed official recognition on these names at the expense of the Second Ward, Rincon Hill, and the Transbay District. And a city government’s approval of such a BID is more than just a symbolic embrace of one vision of a neighborhood at the expense of another. A BID’s taxing authority gives it very real power to advocate for the name it may prefer for a neighborhood. In San Francisco, for example, the East Cut Central Business District (CBD) used its tax revenue largely to

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promote the name East Cut itself, complete with an impressive website fea­ turing high-production value videos and an elaborately designed logo of a stylized “E”. Beyond BIDs and official neighborhood boards, the state also implicitly ratifies names of neighborhoods by supporting and enforcing private own­ ership groups. Neighborhood associations are a familiar means by which local owners band together to advance a particular vision of their ideal neighborhood, whether preserving its residential character or improving its reputation as an attractive zone for shopping and commerce. The choices these associations make to offer certain amenities or impose limits on development often express “exclusionary vibes” that send a message that only some groups are preferred as residents (Strahilevitz 2006). “Restrictive covenants” (RCs) perform a similar function using more formal legal means. RCs are private agreements that bind owners using a blend of contract and property law principles to a series of shared commitments about develop­ ment in the area the covenant governs. In either case, these private methods necessarily take a position on how a neighborhood is defined in two major ways: geographically, as demarcating the boundaries of the association and/ or list the parcels included in the covenant; and onomastically, because they are charged with identifying the area in question by some name. With regard to RCs, the role played by the law might not be immediately obvious because instinctively neighborhood groups are commonly regarded as private associations, and RCs as private agreements. Yet, in less visible ways, law supports both private arrangements, and with them the names these organizations choose for neighborhoods. Of course, neighbors may also join together informally to (re)define and (re)name their places of resi­ dence. However, most US cities offer a way for neighborhood associations to enjoy municipally sanctioned status, typically to the exclusion of other competing groups in the same area. Portland, Oregon, for example, officially recognizes (and carefully regulates) 94 neighborhood associations and requires that their boundaries not overlap with each other. Although this kind of relative status bestowed by cities on certain neighborhood groups is meaningful in its own right, it also has important practical implications. City recognition earns neighborhood associations a place at the bargaining table and the ear of local politicians. Thanks to this implicit state support, RCs can also see to it that their private definitions of neighborhoods ripen into dominant ones. Houston furnishes a salient example because the city’s lack of zoning means that residential areas place much more weight on RCs for private regulation (Blackman 2011). Neighborhoods governed by these covenants often adver­ tise this fact with signs indicating their boundaries and chosen names, such as the stone signs reading “Braeswood Place—a Deed Restricted Commu­ nity” that dot the median along Braeswood Drive in Houston’s southwest loop. And to offset the city’s absence of zoning, Houston’s city attorney has a Deed Restriction Enforcement Team to back up these seemingly private

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agreements through public intervention. As with neighborhood associations, deed-restricted communities may grow into BIDs, as did Braeswood Place, which began as a covenant among neighbors and became a state-sanctioned district of the City of Houston (City of Houston 2018). What does all of this tell us about how cities deploy law to intervene in the otherwise organic processes by which neighborhoods are named and configured? For one thing, local governments rarely create nomenclature themselves and then simply impose it on their neighborhoods. Rather, to the extent that a city adopts an official naming scheme, it generally incorporates preexisting names and boundary lines used by residents. The state’s role in naming is thus more an official act of ratification or approval of a name already in use for a neighborhood. After granting such names municipal imprimatur, city governments often also elevate them to a place of priority on official maps and in official communications. Local government does not, of course, always intervene in the naming of neighborhoods. Houston’s poshest area is River Oaks. The name carries such cachet that businesses located miles away, in entirely different neigh­ borhoods, will identify themselves as part of River Oaks. The “River Oaks Plant House”, for example, is three miles from the center of River Oaks, firmly in a neighborhood called West University Place. Similarly, Fleming’s Steakhouse is outside the River Oaks border, but claims River Oaks as its location, and even identifies itself as “Houston/River Oaks Fleming’s” on its official website. The City of Houston has not sought to halt these practices. In this case, the municipal government did not play an active role in this onomastic development. However, in a significant number of other instan­ ces, cities have actively regulated how their neighborhoods are known. According to Chicago’s ordinances, for example, the city reserves exclusive authority to define its subdistricts; and Los Angeles still maintains elaborate city council procedures to approve renaming. These examples illustrate that law is often present in neighborhood-naming processes. Nevertheless, the ineffectiveness of Chicago in limiting the naming of neighborhoods by developers, and Los Angeles’ rubber-stamp approach to approving proposed names even in the presence of strong objections, illustrate that, even when law is present, it is notably weak. One of the reasons for this may be the importance of public names for local identity. Neighborhood names are not just useful descriptions. They are powerful markers of cultural identity, social status, and economic development. Local governments’ involvement in naming therefore touches all these issues—with implications for theories of both property and local government.

Toponomy as Cultural Property The landscape of legal determinants of neighborhood names, and broader questions of local identity, reflect a kind of cultural property, an ownership interest that inheres in a nation or ethnic group rather than in a private

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individual. In its most familiar form, cultural property encompasses artifacts like antiquities or sacred objects. Greece’s claim that the Elgin Marbles should be repatriated from the British Museum is rooted in the notion that the Par­ thenon friezes are its rightful cultural patrimony and therefore belong in their native land (Merryman 2000). Indigenous peoples’ attempts to reclaim their ancestors’ remains from museums, either through lawsuits or more recently through legislation like the 1990 Native American Graves Protection and Repatriation Act, reflect a similar assertion of ownership over objects of shared value to their people. While cultural property usually pertains to claims of ownership over physical objects, scholars have more recently adap­ ted the concept to intangible property as well. Indigenous medicinal remedies and agricultural innovations, for example, have been increasingly patented under US law, sparking a backlash against multinational companies’ failure to compensate indigenous groups for the use of their traditional knowledge (Koehler 2007; Riley 2005; Aoki 1998; Gerstenblith 1995). Cultural property thus includes objects or ideas of cultural significance that have long been thought to “transcend ordinary property conceptions” but conceives of these intangibles with an ownership paradigm (Carpenter et al. 2009: 1032). The owner in cultural property is a collective entity such as a tribe or a nation rather than a single individual. Peggy Radin advanced the impor­ tant insight that some property transcends economic valuation because it is tied to individual self-realization in a way that cannot be reduced to monetary value (Radin 1982). Kristen Carpenter, Sonia Katyal, and Angela Riley (2009) adap­ ted this argument in the cultural property context, arguing that such property transcends monetary valuation because it is inextricably tied to the self-defini­ tion or even survival of an indigenous group. As the Cherokee argued in liti­ gation seeking to prevent the loss of sacred sites, “[w]hen this place is destroyed, the Cherokee people cease to exist as a people […]” (Car­ penter 2008: 315). Just as property may be constitutive of individual personhood, so too may cultural property be constitutive of a group’s peoplehood (Carpenter 2009). Whether or not an ownership interest may be understood in terms of cultural property depends upon three conditions. First, there must be a coherently defined group of people who can claim ownership. Second, an entity—tangible or otherwise—must be identifiable as the object of the property relation. Third and finally, a relationship must exist between the first and the second pre-requisites such that the entity is constitutive of the people’s group identity. This framework illustrates how neighborhood names may be understood as a form of cultural property. First, many urban denizens regard themselves as belonging to a commu­ nity that is defined by their neighborhood. Harlem is a classic example. As the name reminds us, this area has continued to function as a vital center of African American culture, ever since the very first Africans were brought to the Dutch colony in the 17th century. Miami’s Little Haiti is one of many instances of a neighborhood name that indicates that its residents have

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emigrated from a foreign country. Other examples include Detroit’s Poletown, Los Angeles’s Historic Filipinotown, and Orange County, California’s Little Saigon—as well as New York’s Little Italy, and the Chinatowns of San Francisco, Los Angeles, New York, and other cities. In other instances, it is less clear whether a group seeking to embrace a particular neighborhood name reflects a coherent people. San Fernando Valley denizens seeking to exit Van Nuys and become part of Sherman Oaks, or to recast their part of Sepulveda as “North Hills” were united only in their interest in the proposed name change, not by any ethnic or other identity. Second, and more straightforward, all controversies over neighborhood renaming reflect attempts to exercise control over an area by demanding that it be officially recognized under a preferred name. But is a name a group’s “property”? At first glance, this may seem implausible. Neighborhood names are informal reference points, not classical antiquities or sacred tribal objects. Yet the idea that a name can comprise a property interest is hardly surprising under US American law. On the contrary, one strain of intellec­ tual property law—trademark—is devoted to securing owners’ interests in names of goods and services. And while preservationist residents do not seek to secure a traditional right of exclusion in their neighborhood’s name, they do seek a form of exclusivity in that they either deny private groups the ability to market a name or ask that city officials formally recognize their preferred name to the exclusion of others. Finally, while most neighborhood-naming controversies involve both a definable people (even if in a much more general sense) and a discernable object of ownership, the question remains whether the relationship between the two is so constitutive of the former’s identity that it fits the cultural property paradigm. In some cases, the answer seems relatively straightfor­ ward: the vehemence of Harlem residents’ opposition to SoHa illustrates that the area’s dwellers regard the sole use of the term Harlem as both deeply personal and highly significant. Similarly, descendants of Bahamian immigrants who called their Miami neighborhood Lemon City expressed concern that the city’s official recognition of the area as Little Haiti would “obliterate all the others who have contributed to this area … [especially] black Americans and immigrants from the Bahamas” (Elfrink 2016). Much of the same concern animated opposition to Los Angeles’s renaming of South Central as South Los Angeles. At least some residents objected to the name change by using the argument that South Central expressed who they were and gave them a sense of pride. The name allowed them to tell the world that they had thrived, despite living in an area perceived as violent and dangerous. For individuals, personal names have enormous power to identify and declare one’s identity to the world. For citizens of an urban community, the name of their neighborhood is the powerful and primary means of expressing their collective belonging to a particular group and place (Elfrink 2016).

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These small-scale neighborhood-based groups may not have the same long-standing traditions or external recognition of larger groups that have traditionally claimed cultural property rights, such as a country or an indi­ genous nation. Yet this distinction may make the relationship between a neighborhood’s name and the group’s identity all the more powerful. Outside of the most constitutive examples, the existence of indigenous peoples is not dependent on a particular article of cultural property. For example, the Inuit people of Greenland who sought repatriation of their ancestors’ remains from New York’s American Museum of Natural History did not find that repa­ triation critical to their continued existence (Carpenter 2009). The Inuit would have persisted even if their ancestral remains had not been repatriated. Neighborhood-based communities, by contrast, are bound up exclusively with their particular geography and its nomenclature. If Harlem were to be renamed, that might threaten to erase the history of the area as a unique locus of the Black experience. Effacing a neighborhood name may well cause the associated local group’s distinctive cultural identity to evaporate. These dynamics, moreover, are suffused with the reality that the interplay between law, toponomy, and space is inevitably racialized. Some renaming conflicts bring race explicitly to the surface, raising concerns that dominant groups are erasing or oppressing historically marginalized ones. Consider Harlem residents’ visceral objections to SoHa, which they regarded as “trying to take the black out of Harlem” (Clark 2017). Similarly, the move to create Little Haiti became fraught when opponents expressed concern about property values as “coming from a racist place” in the comparison of Haiti to a “deforested country” and a “poor country” (Green and Rabin 2013). Race can be a cudgel, blunt and ugly, even though it can also be a shield, reaffirming and empowering (Clark 2017; Green and Rabin 2013). Racial dynamics in naming conflicts, however, are not always about asser­ tions of, or resistance to, majority white power. They can also be about dif­ ferent outside ethnic groups competing for relative status via official recognition, as the examples above in Koreatown and Little Haiti illustrate, with marginal communities competing for status in urban areas (Orlov 2009). And racial and ethnic dynamics are present in toponomy, of course, even when names and interests do not explicitly invoke racial or ethnic categories. Often, the reasons people give for wanting to rename an area—prestige, status, and property values, for instance—are just proxies for seeking to dis­ place or efface minority populations. White urban residents, for example, tend to choose smaller neighborhood designations to separate themselves from broader city populations, psychologically drawing boundaries in demarcating their place. The desire for a more intimate scale in urban living is not inher­ ently problematic—most residents seek to make their corner of the big city seem more manageable—but in an era in which explicit racial steering and other pernicious manifestations of bias are nowhere near as ubiquitous as they once were, seemingly neutral designations carry great weight as a means of signaling—and altering—racial landscapes. In short, whether toponomy

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reaffirms the value of racial identity or becomes a tool of erasure, any engagement with neighborhood naming must forthrightly address effects on inclusion and exclusion, as well as identity. Similar crosscurrents suffuse the balance between the value of community and the risk of balkanization at the sub-local level. Reinforcing neighbor­ hood identity can deepen community ties, with benefits such intensifying a sense of belonging, strengthening social ties, and reinforcing neighborhood resources, even in the most distressed urban communities. The small scale of neighborhoods compared to cities can make urban living manageable. And sub-local empowerment has the potential to enfranchise communities otherwise blocked from political power at the city level. Indeed, a positive and underappreciated aspect of the legal dimensions of urban governance is that cities seem to work better the more widespread civic engagement is. Conversely, however, local empowerment around identity risks fragmenting the larger city into ever narrower and more homogenous subgroups. Sub-local empowerment tends to risk local Balkanization—indeed, this is partially why neighborhood councils, advisory committees, community boards, and the like are notably resistant to considering the citywide impacts of a wide range of decisions at their scale (Chemerinsky and Kleiner 2014). However, questions of neighborhood identity (with naming a particularly salient example) strongly reinforce people’s sense that they are living in insulated communities rather than cities or regions as such. That can be positive or negative, depending on the context and valence of any given issue. The state takes a peripheral posture in these naming controversies, but its role remains significant, even if only to passively ratify private decisions. Bringing more formalization and transparency to the process (as seems to be far more the case with city streets and other larger forms of infrastructure) can focus local organizing and possibly provide a check for economic and demographic oppor­ tunism. At the same time, however, any formal structures are subject to capture and can be used by the same relatively better-resourced forces that currently drive many informal renaming efforts. Formalization can also itself engender conflict by making clear the stakes at issue. Formalization and greater transparency must therefore be accompanied by greater sensitivity to the distributional consequences of renaming and the motivations driving proposed changes to local identity.

Conclusion Shakespeare’s familiar question—“What’s in a name?”—resonates because we know well how central naming is to human identity. This chapter has shown that names are similarly significant to the urban neighborhoods that so many US Americans call home, and that law pervades conflicts over naming. Law can also be a focal point for change—because names may be thought of as the cultural patrimony of groups that are often historically disadvantaged; this chapter seeks not only to shine a light on law’s role in these disputes, but also to urge a more formal and transparent role for the

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state. As urban growth continues, the names we give the places we live will increasingly impact our identity. Neutral toponymic policy can provide procedural clarity and promote social equity.2

Note 1 www.latimes.com/archives/la-xpm-2003-apr-09-me-socentral9-story.html 2 Parts of this chapter were published previously. See Davidson and Fagundes (2019).

References Adams, Michael Henry. 2016, May 27. “The End of Black Harlem.” New York Times. https://www.nytimes.com/2016/05/29/opinion/sunday/the-end-of-black-harlem.html. Aoki, Keith. 1998. “Neocolonialims, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World Order of International Intellectual Property Protec­ tion.” Indiana Journal of Global Legal Studies 6, no. 1: 11. Blackman, Josh. 2011, December 3. “‘The Myth of Zoning-Free Houston’ and Sprawl.” https://joshblackman.com/blog/2011/12/03/myth-of-zoning-free-houston-and-sprawl. Carpenter, Kristen A. 2008. “Real Property and Peoplehood.” Stanford Environ­ mental Law Journal 27: 313–395. Carpenter, K., S. Katyal, and A. Riley. 2009. “In Defense of Property.” Yale Law Journal 118, no. 6: 1022–1125. Chemerinsky, Erwin and Sam Kleiner. 2014.“Federalism from the Neighborhood Up.” Yale Law & Policy Review 32, no. 2: 569–581. Chicago Neighborhoods. 2006. “City of Chicago.” https://www.cityofchicago.org/con tent/dam/city/depts/doit/general/GIS/Chicago_Maps/Citywide_Maps/City_Neighbor hoods_1978_11x17.pdf. Chicago Ward. 2018, December 28. “Community Area and Neighborhood Maps.” https:// www.chicago.gov/city/en/depts/doit/supp_info/citywide_maps.html. Clark, Dartunorro. 2017, February 24. “SoHa: The New Name Realtors Are Using For a Part of Harlem.” DNA Info. https://www.dnainfo.com/new-york/20170224/ central-harlem/soha-real-estate-south-harlem-community-board-10/. Davidson, Nestor M. and David Fagundes. (2019). “Law and Neighborhood Names,.” Vanderbilt Law Review 72, no. 3: 757–824. Ehrenhalt, Alan. 2017, October. “Why Neighborhood Nicknames Matter.” Govern­ ing. https://www.governing.com/archive/gov-naming-a-neighborhood.html. Elfrink, Tim. 2016, May 23. “Miami Could Officially Put Little Haiti on the Map this Week, but Opponents Prepared to Fight.” Miami New Times. http://comm unityjusticeproject.com/media/2016/5/25/miami-could-officially-put-little-haiti-on­ the-map-this-week-but-opponents-prepared-to-fight. Gerstenblith, Patty. 1995. “Identity and Cultural Property.” Boston University Law Review 75: 559–688. Gold, Matea. 2003, April 9. “Citing Stigma, L.A. May Drop Name ‘South-Central.’” LA Times. https://www.latimes.com/archives/la-xpm-2003-apr-09-me-socentra l9-story.html. Green, Nadege and Charles Rabin. 2013, October 23. “Where’s Little Haiti?” Miami Herald. https://www.miamiherald.com/news/local/community/miami-dade/article1956 649.html.

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Iannelli, Jerry. 2017, January 6. “Study: Little Haiti Will Gentrify Faster than Any South Florida Neighborhood in 2017.” Miami New Times. https://www.miam inewtimes.com/news/study-little-haiti-will-gentrify-faster-than-any-south-florida -neighborhood-in-2017-9041375. Johnson, James Weldon. (1925) 2021. “Harlem: The Culture Capital.” In The New Negro: An Interpretation. Edited by Alain Locke, 278–287. New York: Albert and Charles Boni. Leovy, Jill. 2008, July 7. “Community Struggles in Anonymity.” Los Angeles Times. https://www.latimes.com/archives/la-xpm-2008-jul-07-me-nameless7-story.html. Kadmon, Naftali. 2000. Toponymy: The Lore, Laws, and Language of Geographical Names. New York, NY: Vintage Press. King, John. 2017, June 1. “New Image for a Slice of SF: The East Cut.” San Fran­ cisco Chronicle. https://www.sfchronicle.com/bayarea/article/New-image-for-a-sli ce-of-SF-The-East-Cut-11186840.php. Koehler, Elizabeth M. 2007. “Repatriation of Cultural Objects to Indigenous Peoples: A Comparative Analysis of U.S. and Canadian Law.” International Law 41, no. 1: 103–126. Madden, David J. 2018. “Pushed Off the Map: Toponymy and the Politics of Place in New York City.” Urban Studies 55, no. 8: 1599–1614. Merryman, John Henry. 2000. Thinking About the Elgin Marbles: Critical Essays on Cultural Property, Art and Law. Boston: Kluwer Law International. Orlov, Rick. 2009, January 22. “Another Group in Van Nuys Wants Out.” Los Angeles Daily News. https://www.dailynews.com/2009/01/22/another-group-in-va n-nuys-wants-out/. Pinkney, Alphonso and Roger R. Woock. 1970. Poverty and Politics in Harlem. New Haven, CT: College & University Press. Policy for Naming or Renaming a Community. 2006, January 31. City Clerk LAhttp:// clerk.lacity.org/sites/g/files/wph606/f/lacityp_025617.pdf [https://perma.cc/L85H-6ZT2]. Radin, Margaret Jane. 1982. “Property and Personhood.” Stanford Law Review 34, no. 5: 957–1015. Riley, Angela R. 2005. “‘Straight Stealing’: Towards an Indigenous System of Cul­ tural Property Protection.” Washington Law Review 80, no. 1: 69–164. Roberts, Sam. 2010, January 5. “No Longer Majority Black, Harlem Is in Transition.” New York Times. https://www.nytimes.com/2010/01/06/nyregion/06harlem.html. Rose, Cheryl P. 2012, October 22. “EaDo: East Downtown Showcases Urban Revi­ val, Eclectic.” Houston Chronicle. https://www.chron.com/real_estate_resource/a rticle/EaDo-East-Downtow/. Rose-Redwood, Reuben, Derek Alderman, and Maoz Azaryahu. 2010. “Geographies of Toponymic Inscription: New Directions in Critical Place-Name Studies.” Progress in Human Geography 34, no. 4: 453–470. https://doi.org/10.1177/0309132509351042. Smiley, David. 2016, May 26. “What’s in a Name? Little Haiti Boundaries Now Official.” Miami Herald. https://www.miamiherald.com/. Super Neighborhoods: Recognized SN List and Bylaws. 2018, December 27. City of Houston, Texashttp://www.houstontx.gov/superneighborhoods/recognized.html [https://perma.cc/J875-G6BE]. Wasserberg, Jonathan. 2019. “Preserve Our Community Name – Stop the Rebrand­ ing of Our Neighborhood.” Change.org.

8

The Law on Geographical Indications and Traditional Food Names Protecting Local and Regional Interests in a Global Arena Caoimhín MacMaoláin

Introduction Food labels are awash with messages. They can carry information on the nature, identity, properties, quantities, ingredients, durability, origin, and nutritional value of a product. They let us know how a foodstuff or a drink has been man­ ufactured and by whom it has been manufactured. Food names, although usually brief, can often impart enough information about a product to consumers to enable them to make their preferred choice. Food names identify the type of product contained within the packaging, and often much more besides. In particular, in the case of Geographical Indications (GIs), food names also let us know about several other features of the product. They inform us, for example, when products are high-quality. They tell us when products are traditional, either in relation to their ingredients, longevity and/or method of manufacture. Food names also announce when products come from a parti­ cular place, often identified directly in the geographical name. They can indi­ cate that all aspects of production—from the creation of the raw materials right through to the slicing and packaging of the finished product—have occurred in a regulated, often very local, region or place. In addition, certain food names identify articles marketed by a specific set of producers who meet an established set of conditions and are the only ones allowed to make the product. The use of these food names is carefully protected by law. This chapter traces the development of the law on food names, and GIs in particular, primarily in the European Union, but also internationally. The focus is mainly on European Union (EU) law as it is here that the law is particularly well-developed in how it recognizes the value of traditional and local produce. The chapter first describes the different types of food name that can be legally used, before providing an in-depth analysis of how the schemes for the registration of geographical names work. As this chapter shows, the level of protection for successfully registered names is quite high in Europe. Although rules and mechanisms have been proposed to extend the international protection of registered geographical names beyond the EU, there has been little appetite thus far for reaching a deal, or even some sort of compromise, about what these onomastic regulations may involve. DOI: 10.4324/9781003431510-8

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Above all, this chapter makes it clear that protecting food names is important. It enables the producers of many high-quality goods to secure guarantees that others will be prevented from passing their wares off as being similar to the traditional or original versions. Food name protections also permit consumers to make choices on the basis of the identified quality, characteristics, or tradition. In short, food name regulations help to ensure consumers get value for the premium they often pay for these goods. Registration as a geographical name is also lucrative. The European Com­ mission has calculated that the sales value of products carrying these regis­ tered names was over 77 billion euros (over 87 billion USD) by 2017 (European Commission 2021). Registration protects custom, tradition, and heritage. Without it, foods and drinks would be threatened by marketforced homogenization. With it, these traditional products, manufacturing methods, cultural identities, and even ways of life can be protected.

Development of EU Law on Food Names EU legislators introduced a new Food Information Regulation in 2011 (European Parliament and Council 2011; European Commission 2008; European Commission 2006a; European Commission 2006b; European Commission 2004; European Commission 2002b), primarily to do three things: 1.) to use labelling as a mechanism to contribute to addressing con­ cerns about ever-increasing rates of obesity;1 2.) to create clearer origin indications for preferred products, especially meats (European Parliament and Council 2011)2 and 3.) to update the previous EU Directives on food labels, presentation and advertising.3 One of the core provisions of these ori­ ginal Directives set out the compulsory indications that had to appear on the labelling of all pre-packaged food products sold anywhere in the EU.4 Listed amongst these mandatory indicators was “the name under which the pro­ duct is sold” (European Parliament and Council 2011).5 Possibly presenting the consumer with the most important, useful, and readily understandable piece of information, the ramifications of this seemingly simple insertion are, however, quite complex. The “name of the food” can be any one type, or in some cases more than one type, taken from a set list of name types contained in the legislation. It should be its “legal name”, but only where one exists (European Parliament and Council 2011).6 If a legal name does not exist, then it should be a “customary name”. If there is no customary name, or if an existing cus­ tomary name has not been used, then a “descriptive name” should be pro­ vided. The name that should or can be used will normally be the one that is also used in the State of production. However, in circumstances where the consumers of the Member State where the food is marketed would not understand the true nature of the food from its usual name, then descriptive information should accompany the usual name to facilitate understanding (European Parliament and Council 2011).7 The name used in the Member

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State of production should not be used in the State of marketing when the food that it designates in the former State is very different in composition or manufacture from the food normally known by that name in the latter State (European Parliament and Council 2011).8 This precaution is taken to avoid causing confusion amongst consumers. In such circumstances, a different name should be used as an identifier: one that better describes the product to the consumer and therefore facilitates distinctions between foods marketed under the same or similar names in different States. Whichever name is used in accordance with these provisions, it should not infringe on intellectual property rights, where these exist (European Parlia­ ment and Council 2011).9 One of the most significant areas of property protection related to the naming of foods exists in the area of geographical names. These have been protected under EU law since the early 1990s and by the provisions of the World Trade Organization (WTO) Agreements since its foundation in 1995. These EU and WTO systems for protecting food names form the basis for the remainder of this chapter.

EU Protection of Geographical Food Names One of the most famous judgments ever to be delivered by the Court of Justice of the European Union (CJEU) was that in Cassis (C-120/78, ECLI: EU:C:1979:42). Here, the Court established a key principle of EU law on one of the cornerstones of the Internal Market: the free movement of goods. It was decided that there should be “mutual recognition” of trading standards, amongst other things, between all EU Member States to facilitate and max­ imize free movement between those States. If a compositional or manu­ facturing standard was acceptable in one EU Member State, then goods, including food, lawfully marketed in that State must be lawfully marketable in all other EU Member States (subject to some exceptions like that set out in Article 36 of the Treaty on the Functioning of the European Union (TFEU) on grounds of protecting health). The product at issue in the Cassis case was a blackcurrant liqueur pro­ duced in the Dijon area of France and normally marketed with an alcohol content of between 15 and 20% by volume. At that time, these drinks could not be lawfully marketed in Germany, which had a legal minimum alcohol content requirement for fruit liqueurs. The alcohol content, under this law, had to be at least 25%. This meant that a well-known and popular beverage from one EU Member State (France) could not be sold in another EU Member State (Germany), consequently restricting the free movement of goods between these States in a manner that was found to be incompatible with EU law.10 In its submissions, the German Government argued for the maintenance of the minimum alcohol content requirement and pointed out that allowing products into unrestricted circulation where they comply with the rules of the country of production only would have the effect of setting a common compositional standard across the EU at the lowest permitted

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level. It would effectively create a race to the bottom. EU Member States would have to “mutually recognize” the production and/or marketing stan­ dards applicable in all other EU Member States and allow unhindered access to their domestic markets for all other products from all other EU Member States. The German Government had made a fair point. EU Member States could no longer introduce or maintain any compositional or production require­ ments for foods sold on their territory. If no minimum standard existed in one Member State then, effectively, no minimum standards could exist in any Member States. The EU Commission followed the Court’s decision in Cassis with an official abandonment of their program of introducing “recipe laws” which would attach the right to use a specified name for a food to those commodities produced in accordance with a “recipe” or a set of com­ positional requirements.11 In a 1985 White Paper on “Completing the Inter­ nal Market” (COM (85) 310) the Commission stated that “[f]ollowing the rulings of the Court of Justice [in Cassis] immediate and full recognition of differing quality standards [and] food composition rules […] must be the rule”. No new recipe laws were introduced after this proclamation. With the principle of mutual recognition in full swing, and the approxima­ tion program abandoned, as least as far as compositional requirements were concerned, case law now dictated that food standards could be lowered. Eggs and butter could be replaced with colorings and vegetable fats as key ingre­ dients in products that could still be named Béarnaise and Hollandaise sauce.12 Additives could be used to preserve a drink and still carry the name Bier, despite this practice having been banned since 1516.13 In the case of Zoni (90/ 86, ECLI:EU:C:1988:403) it was decided that “pasta” could be made with any type of wheat and still be sold to Italians.14 Europe, a region famed for and proud of its rich culinary heritage, was endangered by a proliferation of cheap substitute ingredients and low-quality homogenized foods flooding its internal and export markets. Individual EU Member States had started to take their own action to counter this threat, introducing schemes where “registered designations of origin” could be pro­ tected under national law, leading to higher incomes for producers and higher quality foods for consumers who could now “[…] purchase high quality products with guarantees as to the method of production and origin”.15 As a consequence of the diversity between national practices in the operation of these schemes and their initial successes, it was decided that a harmonized EU version should be created, specifically for foodstuffs having a link between their name, their characteristics, and their geographical origin. Extensive legal protection would now be afforded to all registered geographical food names. Since then, some of the most famous food names have been registered as either a “protected designation of origin” (PDO) or a “protected geographical indication” (PGI) in the EU, including Prosciutto di Parma, Gorgonzola, Feta, Stilton, and Gouda Holland. Separately, alcoholic beverages like Champagne, Scotch Whisky, Madeira, and Port have also

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been registered as protected names under similar legislation specifically covering the identifying product names.16 Wines and spirit drinks are not covered by the food names regulations.17 To date, nearly 1,600 agricultural product and food names have been registered under the Regulations. In addition, there have been over 1,600 wines and 250 spirit drinks registered. Importantly, these products do not have to have originated or been produced in the EU to be registered. Several Chinese spirit drinks (and many Chinese foods) have been registered in the EU under the scheme, as have a couple of US American wines, (e.g., Napa Valley and Willamette Valley). The same is true of several foods and drinks from South Africa (e.g., Rooibos), India (Darjeeling) and Vietnam (Phú Quôc), among others.

Quality Schemes for Agricultural Products and Foodstuffs The current EU Regulation responsible for the protection of geographical food names was introduced in 2012 (European Union 2012). It is the third version of the scheme, with two predecessors previously published in 1992 and 2006 (European Council 1992a).18 The 2006 Regulations had to be formulated by the EU to address the findings of the WTO Dispute Panel in EC Protection of Trademarks and Geographical Indications (DS 174,290), which concluded in 2005 that the original EU Regulations from 1992 did not provide sufficient access either to applicants for a registered name from third countries (non-EU States) or to objectors from third countries to the registration of a name. New provisions would therefore have to be included in the revised EU Regulations to provide the required level of opportunity for applicants or objectors from all WTO Member States and not just from those who met the, previously strict, EU eligibility to apply or object to criteria.19 The 2012 EU Regulation brings together, in one legislative instrument, a number of EU quality-assurance schemes, including those for PDOs, PGIs, and the not-previously-mentioned “Traditional Specialities Guaranteed” (TSG). The TSG is a third category of traditional or geographical food name that is protected under EU law.20 It is not as widely used as the PDO or the PGI. There are just over 70 TSG names registered in the EU; some of the more well-known examples include Traditional Bramley Apple Pie Fill­ ing, Pizza Napoletana, Mozzarella, and Jamón Serrano. The TSG mostly differs from the PDO and the PGI in that it is a name that has been used widely to refer to a traditional product with specific characteristics, regard­ less of where it was produced.21 By comparison, the other categories of protected food name must have been produced in a specific place. The Pizza Napoletana, for example, can only be sold under that name if it is round in shape, no more than 35cm in diameter, has a base no more than 0.4cm thick with a raised rim, and is topped with tomatoes, basil, garlic, and oregano with either Mozzarella di Bufala Campana AOP or Mozzarella STG.22 According to the application for registration of Pizza Napoletana as a TSG,

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the traditional product can be dated back to the period between 1715 and 1725 when Vincenzo Corrado, chief cook for Prince Emanuele di Francavilla, outlined in his treatise on the foods of Naples how tomatoes were used in the production of local pizza. This was followed up by later writers, such as Franco Salerno, who claimed that this pizza “was one of the greatest inventions of Neapolitan cooking”. Pizzerias originated in Naples and the Napoletana was exclusive to the town until the middle of the 20th century. A “designation of origin” then is defined as follows: [a] name which identifies a product originating in a specific place, region or, in exceptional cases, a country; whose quality or character­ istics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors; and the pro­ duction steps of which all take place in the defined geographical area. (European Union 2012)23 By contrast, a GI is mostly the same as a “designation of origin” except that only one of the production steps has to have taken place in the defined geo­ graphical area.24 The “production steps” are defined as “production, processing or preparation”.25 So, for example, the Irish PDO Imokilly Regato must be made from milk produced by local farmers in Imokilly, Fermoy and Muskerry, which is then aged, cultured, ripened, cut, cooked, pressed, molded and matured in the defined geographical area, covering the specified parts of south County Cork set out in the application. The Irish PGI, Sneem Black Pudding, by comparison, is made mostly from local animal products. More specifically, the blood and suet must come from animals slaughtered in the defined geo­ graphical area of the village of Sneem on the Iveragh Peninsula in County Kerry. However, the dry ingredients, including the onions, oats, and spices, may be locally produced, but they do not have to be. All production, proces­ sing, and preparation of Imokilly Regato takes place in the defined geo­ graphical area: hence, it can be registered as a PDO. Some of the production steps of Sneem Black Pudding can take place outside of the defined geographical area and it is therefore registered as a PGI. The registration of a food name as either a PDO or a PGI is dependent on, amongst other things, successfully demonstrating that there is a link between the product’s qualities or characteristics and the defined geographical area of production. This is done by the submission of a “product specification” which details the name to be protected; a description of the product and the raw materials used in production; the main physical, chemical, microbiological, and organoleptic characteristics of the foodstuff; the defined geographical area of production, processing and/or preparation; evidence that the product ori­ ginated in this area; the production methods used to make the product. In addition, details must be provided about the geographical environment such as the levels of sunshine, rainfall, prevailing temperatures, aspect, soil type or quality, distance from the sea, and altitude.26 The Regulation stipulates three

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main objectives for the scheme: 1.) securing fair returns for high-quality products; 2.) ensuring uniform protection of the registered names within the EU (and potentially outside the EU as well if WTO rules are properly implemented, as discussed later in this chapter); and 3.) providing clear information on the value-adding attributes of the product to consumers.27 The promise of these objectives underscores what makes registration as a geographical food name so important: it provides incentives and bonuses for producers who want to make high-quality products, while simulta­ neously indicating to discerning consumers that the appearance of a pro­ tected name with the accompanying EU symbol provides certainty and assurance about the product’s traits.28

Legal Protection for Food Names Once registered, the level of legal protection for PDOs and PGIs is exten­ sive. These food names, which fall within the category of “legal food names”, are protected against the following: [a]ny direct or indirect commercial use […] in respect of products not covered by the registration [or] where using the name exploits the repu­ tation of the protected name, including when those products are used as an ingredient; any misuse, imitation or evocation, even if the true origin, nature or essential qualities of the product […] is indicated or if the protected name is translated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation” or similar […]; any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product [or] any other practice liable to mislead the consumer as to the true origin of the product.29 While the Regulation itself clearly provides a very broad level of protection for registered geographical food names, the CJEU has arguably extended this even further in a number of its judgements. Some of the best examples of the breadth of protection afforded by the CJEU have involved famous Italian foods. In Gorgonzola (C-87/97, ECLI: EU:C:1999:115) for example, the court found that the trademark name Cambozola could be deemed an evocation of the PDO “Gorgonzola” where the two names were being used to market similar soft blue cheeses. Cru­ cially, the court reached the following conclusion in paragraph 27 of its deliberations: [i]t would seem reasonable to conclude that a protected name is indeed evoked where the term used to designate that product ends in the same two syllables and contains the same number of syllables, with the result that the phonetic and visual similarity between the two terms is obvious.

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For several reasons, this ruling demonstrates a very broad interpretation of the level of protection from evocation afforded to geographical food names. The true origin of the trademark name was also clearly indicated on the packaging. Moreover, only two of the four syllables used in the two names were the same. In addition, “Cambozola” had been lawfully produced and marketed under that name since 1977 and had been lodged for registration as a trademark in Austria in 1983, nearly a decade before the original geographical food names regulation ever came into existence in 1992 (European Council 1992b). Despite these facts, the CJEU, in paragraph 25 of its deliberations, came to its conclusion on the basis that evocation, as prohibited by the EU Regulation,30 “covers a situation where the term used to designate a product incorporates part of a protected designation, so that when the consumer is confronted with the name of the product, the image triggered in his mind is that of the product whose designation is protected”, consequently finding, in paragraph 26, that “it is possible […] for a pro­ tected designation to be evoked [even] where there is no likelihood of con­ fusion between the products concerned and even where no [legal] protection extends to the parts of that [name] which are echoed in the term or terms at issue”. More recently, the CJEU has held that there does not necessarily have to be any phonetic or visual similarity between a registered and an unregistered name for potential evocation to exist. In Scotch Whisky v. Klotz (C-44/17, ECLI:EU: C:2018:415) both the court and the Advocate General concluded that identify­ ing similarities between names is only one factor to be considered when asses­ sing “whether, when the consumer is confronted with the name of the product concerned, the image triggered in his mind is that of the product whose GI is protected [thus] an ‘evocation’ may be found to exist even in the absence of such similarity”.31 Another factor to be considered is “conceptual proximity” which, if it existed, “may also trigger an image in the consumer’s mind which is that of the product whose GI is protected, when he is confronted with a similar product bearing the disputed name”.32 In this case, the Court was asked to determine whether the average consumer, who was reasonably well-informed, observant, and circumspect would think directly of the protected geographical name Scotch Whisky when confronted with a comparable product bearing a designation that included the word “Glen”—a Scottish word for “valley” derived from the Scots Gaelic word “glean”. Clearly there was no phonetic and/ or visual similarity between Scotch Whisky and Glen, nor was there any partial incorporation of the protected name Scotch within the disputed name Glen Buchenbach, as had previously been the case in the dispute between the names Gorgonzola and Cambozola. However, a case could be made for “conceptual proximity”: that is, use of a name that, although dissimilar, can still evoke an image in the mind of the consumer of the protected product. The issue of evo­ cation in this case was ultimately left for the national referring court from Germany to decide, but the CJEU did make it clear that this “conceptual proximity” must be considered in its future deliberations.

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The CJEU arguably took the protection afforded to registered food names to a new level and in a different direction when assessing the status of another famous Italian product, Parma ham. When deliberating in the Prosciutto di Parma case (C-108/01, ECLI:EU:C:2003:296) the court held that legal protection for registered food names could include not only sti­ pulations on where ingredients were manufactured, where the product was made and/or how it was made, but any use of a protected designation of origin could also be “subject to the condition that operations such as the slicing and packaging of the product take place in the region of production, where such a condition is laid down in the specification”, once this require­ ment is sufficiently well publicized. The co-operative representing the Parma ham producers had taken issue with the fact that one of the respondents—a chain of supermarkets operating in the United Kingdom—was selling the meat after purchasing it pre-sliced from a food supplier, also based in the UK. The latter had sourced the ham from an Italian producer who was covered by the registration and who was a member of the said co-operative, but who was exporting it unsliced. The slicing and final packaging were both taking place in the UK. Both of the UK-based respondents and the UK Government argued before the CJEU that the EU Geographical Food Names Regulation did “not give producers the right to prohibit the sale under a PDO of a product sliced and packaged outside the region of produc­ tion”.33 The court disagreed, finding that, as alluded to above, once sli­ cing and packaging requirements were included in the registered product specification then insisting on these requirements could be included as part of the protection afforded to a registered PDO.

Generic Food Names Food names that have come into common usage are known as “generic terms”. Although these names may relate to the place, region, or country where the product was originally produced or marketed, once they become the common name for a product, they may no longer be registered as either a PDO or as a PGI (European Union 2012).34 By definition, and under the terms of the EU Regulation, successfully registered PDOs and PGIs are protected from ever becoming “generic” (European Union 2012).35 However, the generic status of a foodstuff is not without its complexities and con­ troversies. This has been the case for products like Feta cheese: a soft white cheese, usually made in Greece from sheep and/or goat milk. As we shall see, the name Feta could be described as borderline generic, as it was in fairly common usage before registration, but also clearly associated with a specific place of origin and production. As a result, the question of whether it could be registered as a PDO was difficult, particularly when several other EU Member States sought to have this registration annulled by the CJEU. The complexity and contention resulted in some flip-flopping on the pro­ tection of Feta, a cheese with an incredible annual global trading value in its

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various versions of over $10 billion—a figure which is expected to rise by up to another 50% by the end of the decade. Feta was first registered as a PDO in 1996.36 At the time three EU Member States (Germany, France, and Denmark) objected to this registra­ tion,37 on three grounds. First, they contended that the name Feta did not meet the conditions for PDO registration since the cheese concerned does not originate in a specific place, as required by the Regulation.38 Second, they argued that the product does not possess any qualities or characteristics that are essentially due to the geographical environment of production.39 And finally, they asserted that the name Feta was a generic name and therefore not eligible for registration, as the Regulation expressly prevented such names from gaining protected status.40 With regard to the first two arguments, the Member States submitted that the name Feta was an ety­ mological derivative from the Italian word “fetta”, meaning “slice”, and the cheese normally marketed under that derived name related to rudimentary methods of cheese-making which had been used for a considerable period of time and in similar ways across several Balkan States. The term “Feta”, they claimed, had never been used solely to describe a product of Greek origin. The fact that the name Feta evolved from the Italian word for “slice” was not overly-significant because the Regulation clearly allowed “[traditional] non-geographical names designating an agricultural product or a foodstuff originating in a region or a specific place, which fulfils the conditions [for protected status to] also be considered as designations of origin”.41 So a name like Feta could be legitimately registered as a PDO, provided it had not already become a generic name. However, this was not the only argu­ ment to be considered. The law stipulates that when deciding whether a name is generic, the existing situation in areas of consumption and any existing relevant national or EU legislation should also be taken into account (European Union 2012).42 The CJEU found, however, that when assessing the name Feta, the EU Commission “took no account whatsoever of the fact that the name had been used for a considerable time in [EU] Member States other than [Greece]”.43 It was concluded, therefore, that there had not been due account taken of all relevant factors, as required by the legislation and that, consequently, the registration of Feta would have to be annulled. Subse­ quently, the Commission ordered more rigorous investigations into the production and consumption of Feta as well as consumers’ familiarity with the cheese in the EU Member States. These inquiries found, amongst other things, that the production of Feta was substantial in four EU countries (Denmark, France, Germany, and Greece) and that it was produced to some level in nine other EU Member States (Italy, Bel­ gium, Finland, Austria, Ireland, Sweden, UK, the Netherlands, and Spain).44 Countering this seemingly ubiquitous production of Feta was the finding that consumption rates per person were heavily concentrated in Greece.45 Adding to this complexity was the fact that cheeses sold using the name Feta, regardless of

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where they were produced, tended to be marketed using explicit or implicit references to Greece through, for example, the addition of text or drawings on the packaging that had connotations of Greece. In the end, the Scientific Com­ mittee for Designations of Origin, Geographical Indications, and Certificates of Specific Character, which had been established in 1992,46 found that Feta had not become a generic name.47 The name was thus re-registered as a PDO.48 But that was not the end of the story! Two of the three original objecting EU Member States came back to the CJEU with another application: this time to re-annul Feta’s protected status.49 Germany argued that the Scientific Committee’s finding that Feta was not a generic name had not been supported by a sufficient statement of reasons; mere reference to the advisory opinion of such a committee, Ger­ many contended, was an inadequate foundation for the introduction of the new regulation to register Feta as a PDO. The second objecting Member State, Denmark, maintained that Feta did not originate in Greece—either as a product or as a name. Reverting to the previous argument that “Feta” was an Italian word used to describe a type of cheese produced in several Balkan States, Denmark went so far as to claim that even Greek consumers prob­ ably considered Feta to be a generic name. It is difficult to argue with any of these contentions. It is true that Feta has been widely produced, for a very long time, in several States and in several different ways. However, the CJEU once again focused more on the facts that: (i) production and con­ sumption of Feta were predominantly in Greece; and (ii) Feta produced in other States was commonly marketed with Greek connotations. Ultimately, the applications of Germany and Denmark to annul the re-registration of Feta as a PDO were dismissed. The Court held that it was not a generic name and that the Commission was within its rights to follow the Scientific Committee’s Opinion in this regard.

Global Protection for Geographical Food Names International intellectual property rights have been afforded the protection of law since the 19th century with instruments like the Paris Convention for the Protection of Industrial Property, which was adopted in 1883. This leg­ islation was extended to a wide range of areas such as patents, trademarks, and industrial designs. Although it did not originally contain any specific provision on GIs, it did take general account of place of origin rules.50 Article 1 of the Paris Convention lists “appellations of origin” as an object of the protection of industrial property. However, crucially, there was no register established for protecting designations of origin in international law. The Berne Convention was adopted in 1886 to deal more specifically with copyright protection for literary and artistic works. The establishment of the World Intellectual Property Organization (WIPO) in 1967, which now counts 193 States as Members, gave more impetus and structure to interna­ tional protection of these rights. However, it was the foundation of the

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WTO, and the General Agreement on Tariffs and Trade (GATT) negotia­ tions during the Uruguay Round of the late 1980s and early 1990s that cemented the protection of GIs as a significant category of international intellectual property rights. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) defines GIs as those “which identify a good as originating in the territory of a [WTO] Member, or a region or locality in that terri­ tory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin”.51 The level of pro­ tection afforded to these products is to be implemented by WTO Members in a way that prevents “the use of any means in the designation […] of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin”.52 This protection should include the invalidation of trademarks that contain a GI where the good does not actually originate in that place.53 The TRIPS provisions on GIs also extend to wines and spirits. Again, the name used on a wine or spirit should not suggest that it originates in a place where is has not been produced, even where the true origin of the good is indicated, or words such as “kind”, “type”, or “style” have been used in conjunction with the GI. For example, a producer may not circumvent the rules set out in TRIPs by describing their wine as being a “Champagne-like” or “Scotch-style” product. One of the major shortcomings of the protections set out for GIs in the TRIPS Agreement is the failure to create an international system for registration and protection akin to that established by the EU Regula­ tions on PDOs, PGIs, and TSGs. The WTO Agreement does provide that “[m]embers agree to enter into negotiations aimed at increasing the pro­ tection of individual geographical indications”,54 especially for wines and spirits. Part of this process is the establishment of a multilateral system of notification and registration of GIs for wines which are eligible for protection in States that participate in this system.55 This multilateral register is to be negotiated by States within the TRIPS Council. It is also hoped, separately, to extend this type of protection beyond wines and spirits, under the Doha Mandate.56 Progress on these ways of extending protection for GIs has been slow. WTO Members have fallen into sepa­ rate camps on these issues, with some advocating GI extensions (e.g., the EU, India, Switzerland) and some opposing them (e.g., Australia, Canada, the United States of America). Opponents maintain that the current level of protection provided for GIs under the TRIPS Agreement is sufficient. Advocates would like to use GI protection to enhance mar­ keting opportunities for their products. As a result, GI protection under the WTO Agreements is relatively minimal. It is limited to that provided for within Articles 22–24 of the TRIPS Agreement. Many food names used to indicate quality or character in their original State of production thus go under-protected in international trade law.

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Concluding Remarks Products bearing geographical names have become a multi-billion-dollar industry, both in the EU and globally. However, the levels of protection afforded to these names by regulations in the EU and Global jurisdictions differ greatly. The case law of the CJEU has shown just how far the Court is willing to go to protect all aspects of the production process and to preserve the reputations of registered names. The EU Regulations set out in some detail a defined and efficient system for gaining registered status, or for objecting to it. The EU system ensures that only products with clear links to the registered name can benefit from that registration. Internationally, although the Paris Convention and WIPO make reference to GIs, and other plurilateral agreements have sought to introduce arrangements affording some protection,57 there are still no specific provisions on how GIs should be recognized and protected. The WTO, in particular through its TRIPS Agreement, does set out that GIs should be protected. However, it falls some way short of determining how this protection is applied. The failure to agree a multilateral register for GIs has proven to be a significant stumbling block in gaining the level of recognition that these products and their treasured names should be accorded. International intellectual property protection has come a long way, but not far enough to ensure that we no longer face the type of threat posed, and the legal problems that surround, the continuing availability of “Californian Champagne”.

Notes 1 In particular by making the nutrition declaration compulsory for all covered prepackaged foods under Art. 9(1)(l) of Reg. 1169/2011 (European Parliament and Council 2011). Previously the nutrition declaration was only mandatory for inclu­ sion on the labeling of those foodstuffs about which a nutritional or health claim was also being made. While this would only have covered a small percentage of prepackaged foods, in reality most products carried the nutrition declaration on the label anyway, long before the introduction of the Food Information Regulation. 2 Art. 26. 3 The original Food Labelling Directive was Directive 79/112/EEC (European Council. 1978) [1979] OJ L 33/1. It was later replaced by Directive 2000/13/EC (European Parliament and of the Council 2000) OJ L 109/29. 4 Art. 3 of Dir. 79/112 (European Council 1978) and subsequently Art. 3 of Dir. 2000/13 (European Parliament 2000).

5 Art. 9(1)(a).

6 Art. 17(1).

7 Art. 17(2).

8 Art. 17(3).

9 Art. 17(4).

10 In particular what is now contained in Art. 34 TFEU, which provides that: “[q] uantitative restrictions on imports and all measures having equivalent effect shall be prohibited between [EU] Member States”. These “quantitative restrictions” were interpreted by the Court of Justice of the European Union in Case 8/74, Procureur du Roi v. Benoît and Gustave Dassonville ECLI:EU:C:1974:82, to

136

11

12 13 14 15 16

17

18 19 20

21 22 23 24 25 26 27 28 29 30

Caoimhín MacMaoláin include: “[a]ll trading rules enacted by [EU] Member States which are capable of hindering, directly or indirectly, actually or potentially [trade between EU Member States]”. This rather broad definition of the rules caught within the scope of the Art. 34 TFEU prohibition includes national minimum alcohol con­ tent requirements of the type under review in the Cassis case, discussed above. For example, under the terms of Directive 73/241/EEC (European Council 1973) OJ L 228/23, “chocolate” could only be used to describe products made with at least 35% dry cocoa solids and 18% cocoa butter. Other “recipes” or minimum compositional requirements were set during the 1970s for honey, fruit juices, coffee, fruit jams, jellies, marmalades and chestnut pureé. Case C-51/94, Commission v. Germany, ECLI:EU:C:1995:352. Case 178/84, Commission v Germany, ECLI:EU:C:1987:126. Case 90/86, Criminal proceedings against Zoni, ECLI:EU:C:1988:403. Preamble to Council Regulation (European Council. 1992a) on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, OJ L 208/1. Champagne and Madeira, for example, are registered as PDOs under the extensions to the application of Arts. 51 and 54 of European Council Regulation (1999) No 1493/1999 and Art. 28 of European Commission (2002) Regulation No 753/2002 by Art. 107 of Regulation (EU) No 1308/2013 (European Union. 2013) OJ L 347/671. Originally, wines and spirits were not covered by Art. 1(1) of Regulation (EEC) No 2081/92 (European Council. 1992b). These drinks continue to be excluded from the scope of this legislation by Art. 2(2) of EU Regulation No 1151/2012 (European Union 2012) OJ L 343/1. However, wine-vinegars can still be regis­ tered as a PDO or a PGI under this Regulation. Wines and spirit drinks can, of course, still have their names protected in the EU, but under a different scheme, as outlined in the immediately preceding footnote above. European Council 1992a and European Council 2006a on the protection of geo­ graphical indications and designations of origin for agricultural products and foodstuffs, [2006] OJ L 93/12. This was done through a revision of what ended up as Art. 5 and Art. 7 of Reg. 510/2006 (European Council. 2006a). As initially established by Council Regulation (EEC) No. 2082/92 (European Council 1992a) on certificates of specific character for agricultural products and foodstuffs, [1992] OJ L 208/9. The TSG was formerly known as the “certificate of specific character”. It was re-categorized as the TSG by Council Regulation (EC) No. 509/2006 of 20 March 2006 on agricultural products and foodstuffs as traditional specialities guaranteed, [2006] OJ L 93/1. Regulation 509/2006 was also introduced into EU law as a solution to the problems with accessibility for third country applicants and objectors which were identified by the WTO Panel in EC protection of trademarks and geographical indications, discussed above (European Council 2006b). Art. 18(1) of (European Union 2012). As set out in more detail in Commission Regulation (EU) No 97/2010 (European Commission 2010) [2010] OJ L 34/7. Art. 5(1). Ibid., Art. 5(2). Ibid. Art. 3(7). Ibid., Art. 7(1). Ibid., Art. 4. Ibid., Art. 12(3). Ibid., Art. 13(1). Art. 13(1)(b) of Reg. 2081/92 (European Council 1992b) at the time of these delib­ erations; now contained in Art. 13(1)(b) of Reg. 1151/2012 (European Union 2012).

Geographical Indications and Traditional Food Names 31 32 33 34 35 36

37 38 39 40 41 42 43 44 45

46 47 48 49 50 51 52 53 54 55 56 57

137

Ibid., para. 49. Ibid., para. 50. Ibid., para. 41. Art. 6(1). Art. 13(2). Inserted into the register of protected food names by the Annex to Commission Regulation (EC) No. 1107/96 (European Commission 1996) under the procedure laid down in Article 17 of Council Regulation (EEC) No. 2081/92 (European Council 1992b), [1996] OJ L 148/1. Joined Cases C-289/96, C-293/96 and C-299/96, Denmark, Germany and France v. Commission, ECLI:EU:C:1999:141. At the time, under Art. 2(2) of Reg. 2081/92 (European Council. 1992b) and now under Art. 5(1)(a) of Reg. 1151/2012 (European Union. 2012). Para. 49 of the Judgment in Joined Cases C-289/96, C-293/96 and C-299/96, note 41 above. As now provided for by Art. 6(1) of Reg. 1151/2012 (European Union 2012). As contained in Art. 2(3) of Reg. 2081/92 (European Council 1992b). This provision does not appear in Reg. 1151/2012 (European Union 2012), but the registration of traditional non-geographical food names still applies. Art. 41(2). Para. 101 of the Judgment in Joined Cases C-289/96, C-293/96 and C-299/96, note 41 above. Recitals 12–17 of the Preamble to Commission Regulation (EC) No 1829/2002 (European Commission 2002c) OJ L 277/10. The Commission investigation found that almost 86% of Feta consumption in the EU happened in Greece, compared to less than 0.1% in several Member States, like Spain, Portugal, Italy, and the Netherlands. Even the second-highest consumers of Feta (Germany and Denmark) accounted for only 5% of all EU consumption. More details on these consumption rates are set out in Recital 19 of the Preamble to Reg. 1829/2002, (European Commission 2002c). By Commission Decision of 21 December 1992 setting up a scientific committee for designations of origin, geographical indications and certificates of specific character, [1993] OJ L 13/16. Recital 22 of the Preamble to Reg. 1829/2002(European Commission 2002c). Ibid., Art. 1. Joined Cases C-465/02 and C-466/02, Germany and Denmark v. Commission ECLI:EU:C:2005:636. For example, Art. 6 of the Paris Convention 1883. Art. 22(1) of the TRIPS Agreement. Ibid., Art. 22(2)(a). Ibid., Art. 22(3). Ibid., Art. 24(1). Ibid., Art. 23(4). Available at: wto.org/English/res_e/booksp_e/ddec_e.pdf. For example, the International Convention on the Use of Appellations of Origin and Denominations of Cheeses (Stresa Convention).

References European Commission. 2021. Study on Economic Value of EU Quality Schemes, Geographical Indications (GIs) and Traditional Specialities Guaranteed (TSGs): Final Report. Directorate-General for Agriculture and Rural Development. Luxembourg: European Union Publications Office.

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European Commission. 2010, February 4. Regulation No 97/2010. Entering a Name in the Register of Traditional Specialities Guaranteed [Pizza Napoletana (TSG)]. Luxembourg: European Union Publications Office. European Commission. 2008, January 30. Directive 2008/5/EC. Compulsory Indication on the Labelling of Certain Foodstuffs of Particulars Other than those Provided for in Directive 2000/13/EC of the European Parliament and of the Council. Luxembourg: European Union Publications Office. European Commission. 2006a, December 20. Regulation No 1925/2006: European Par­ liament and of the Council on the addition of vitamins and minerals and of certain other substances to foods. Luxembourg: European Union Publications Office. European Commission. 2006b, December 20. Regulation No 1924/2006. Nutrition and Health claims made on foods—Labelling and Presentation of Those Foods. Luxembourg: European Union Publications Office. European Commission. 2004, March 31. Regulation No 608/2004. Labelling of Foods and Food Ingredients with Added Phytosterols, Phytosterol Esters, Phy­ tostanols and/or Phytostanol Esters. Luxembourg: European Union Publications Office. European Commission. 2002a, April 29. Regulation No 753/2002. Regulation Applying Council Regulation (EC) No 1493/1999 as regards the Description, Designation, Pre­ sentation and Protection of Certain Wine Sector Products. Luxembourg: European Union Publications Office. European Commission. 2002b, July 18. Directive 2002/67/EC. Labelling of Foodstuffs Containing Quinine, and of Foodstuffs Containing Caffeine. Luxembourg: European Union Publications Office. European Commission. 2002c, October 14. Regulation (EC) No 1829/2002. Amending the Annex to Regulation (EC) No 1107/96 with regard to the name “Feta” (Text with EEA relevance). Luxembourg: European Union Publications Office. European Commission. 1999, March 8. Directive 1999/10/EC. Derogations from the Provisions of Article 7 of Council Directive 79/112/EEC as regards the Labelling of Foodstuffs. Luxembourg: European Union Publications Office. European Commission. 1996, June 12. Regulation (EC) No 1107/96. On the Registration of Geographical Indications and Designations of Origin Under the Procedure Laid Down in Article 17 of Council Regulation (EEC) No 2081/92. Luxembourg: European Union Publications Office. European Commission. 1987, April 15. Directive 87/250/EEC. Indication of Alcoholic Strength by Volume in the Labelling of Alcoholic Beverages for Sale to the Ulti­ mate Consumer. Luxembourg: European Union Publications Office. European Council. 2006a, March 20. Regulation 510/2006. Protection of Geo­ graphical Indications and Designations of Origin for Agricultural Products and Foodstuffs. Luxembourg: European Union Publications Office. European Council. 2006b, March 20. Regulation 509/2006. Agricultural Products and Foodstuffs as Traditional Specialities Guaranteed. Luxembourg: European Union Publications Office. European Council. 1999, May 17. Regulation (EC) No 1493/1999. Common Organi­ sation of the Market in Wine. Luxembourg: European Union Publications Office. European Council. 1992a, July 14. Regulation (EEC) No 2082/92. Certificates of Spe­ cific Character for Agricultural Products and Foodstuffs. Luxembourg: European Union Publications Office.

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European Council. 1992b, July 14. Regulation (EEC) No 2081/92. Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs. Luxembourg: European Union Publications Office. European Council. 1990, September 24. Directive 90/496/EEC. Nutrition Labelling for Foodstuffs. Luxembourg: European Union Publications Office. European Council. 1978, December 18. Directive 79/112/EEC. Approximation of the Laws of the Member States relating to the Labelling, Presentation and Advertising of Foodstuffs for Sale to the Ultimate Consumer. Luxembourg: European Union Publications Office. European Council. 1973, July 24. Directive 73/241/EEC. Approximation of the Laws of the Member States relating to Cocoa and Chocolate Products Intended for Human Consumption. https://www.legislation.gov.uk/eudr/1973/241/pdfs/eudr_ 19730241_1984-12-27_en.pdf. European Parliament and Commission. 2002, October 14. Regulation No 1829/ 2002. Genetically Modification of Food and Feed. Luxembourg: European Union Publications Office. European Parliament and of the Council. 2000, March 20. Directive 2000/13. Approx­ imation of the laws of the Member States Relating to the Labelling, Presentation and Advertising of Foodstuffs. Luxembourg: European Union Publications Office. European Council. 1973, July 24. Directive 73/241/EEC Approximation of the laws of the Member States Relating to Cocoa and Chocolate Products Intended for Human Consumption. Luxembourg: European Union Publications Office. European Parliament. 2013, December 17. Regulation (EU) No 1308/2013. Establish­ ment of a Common Organisation of the Markets in Agricultural Products and Repealing Council Regulations (EEC) No. 922/72, (EEC) No. 234/79, (EC) No. 1037/ 2001, and (EC) No. 1234/2007. Luxembourg: European Union Publications Office. European Parliament. 2000, March 20. Directive 2000/13/EC. Approximation of the Laws of the Member States Relating to the Labelling, Presentation and Advertis­ ing of Foodstuffs. Luxembourg: European Union Publications Office. European Parliament and Council. 2011, October 25. Regulation No 1169/2011. Provi­ sion of Food Information to Consumers, Amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and Repeal­ ing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Reg­ ulation (EC) No 608/2004 Text with EEA Relevance. Luxembourg: European Union Publications Office. European Union. 2012, November 21. Regulation No 1151/2012. Quality Schemes for Agricultural Products and Foodstuffs. Luxembourg: European Union Publications Office. European Union. 2013, December 17. Regulation No 1308/2013 of the European Parliament and of the Council of 17 December 2013 Establishing a Common Organisation of the Markets in Agricultural Products and Repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007. Luxembourg: European Union Publications Office. European Union. 1992, July 14. Regulation 2081/92. Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs. Luxembourg: European Union Publications Office.

9

From Fluoxetine to Prozac® How the Pharmaceutical Industry Builds Brand Identity through Prescription Drug Naming Pascaline Faure

Introduction In 2020, there were more than 20,000 prescription drugs on the US market. In such a highly competitive market, the name given to a pharmaceutical drug must do more than simply designate or denote. According to Dutchen (2009), pharmaceutical companies spend anywhere from $250,000 to $2.5 million to develop names for their drug products. For most companies, this money is more than well-invested. A memorable name can make or break a pharma­ ceutical product. Stepney (2010) reports that, in the late 1980s, the British pharmaceutical company Zeneca marketed the angiotensin-converting enzyme inhibitor, lisinopril, as a treatment against high blood pressure. The pharma­ ceutical product was marketed under the name Zestril®. At the same time, Zeneca’s competitor Merck marketed the same molecule under the name Carace®. The name Zestril® was made by combining three elements: 1.) “zest”, a word selected to convey enthusiasm which underscored the com­ pany’s promotional campaign promise that patient-consumers would regain their “zest for life”; 2.) the letter “Z” which harkened to the company name, Zeneca; and 3.) the suffix “-ril”, taken from the final three letters of the molecule, lisinopril. This name creation was a clear success. Zestril was a hit. In 1997, it was Zeneca’s highest selling product worldwide, with sales reach­ ing $1.05 billion.1 By comparison, Carace® had a very different trajectory which began with a completely different naming strategy. Putting function before flash, the product name was made up of the first three letters of “care” and the abbreviation ACE, which stands for angiotensin-converting enzyme (Paling 2001). Of course, it would be incorrect to infer that the name alone was responsible for Zestril’s success story. Clearly, many other factors came into play as well (e.g., the reputation of the company, the promotional cam­ paign, the packaging, etc.). Still, as considerable research has shown, the name a product is given can have a significant effect on its consumer marketability (Gangwal and Gangwal 2011; Blackett and Robins 2001; Lowrey et al. 2003; Keller et al. 1998; Room 1982). To ensure that their products are powerfully positioned on the legal drug market, pharmaceutical companies go to great lengths to devise names that DOI: 10.4324/9781003431510-9

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are both attractive and distinctive (Faure 2022; 2018; 2014). However, the importance of distinctive naming is not only a question of commercial suc­ cess. It is also an issue of consumer safety. To minimize medication errors related to look-alike and sound-alike proprietary names, since 2014, the US Food and Drug Administration (FDA) has issued a set of recommendations for developing proprietary names in the pharmaceutical industry (FDA 2020; 2016; 2014). While the guidance focuses primarily on safety-related aspects, the FDA also gives recommendations to avoid misbranding products by making “misrepresentations with respect to safety or efficacy” (FDA 2020: 15) and warns against names that would be considered too “fanciful” (FDA 2020: 3). This chapter presents detailed information about governmental recommendations for prescription drug names (PDNs) in the US. It demon­ strates how the names devised by pharmaceutical companies are used to create brand identities for PDNs. Beforehand, however, the chapter gives a brief history of PDNs and reviews the different types of PDNs used in the US market today.

A Brief History of Prescription Drug Names (PDNs) The beginnings of contemporary drug science can be traced back to the first quarter of the 19th century and are marked by the emergence of the “clinico­ anatomical method” in European hospitals. The clinico-anatomical method was based on a deep understanding of human anatomy, physiology, and nosology—the branch of medicine devoted to the classification of diseases. Using prolonged observations, thorough physical examinations, and detailed autopsies, the popularity of this approach was spread by prominent medical experts in Paris—the leading medical center in 19th century Europe. The aim of this method was to make diagnoses using not only clinical signs, but also quantifiable disruptions in the body’s biological functions. As early as 1809, French physiologist François Magendie (1783–1855) ushered in the era of experimental pharmacology by exploring the effects of recently isolated chemical drugs on various parts of the body (Dachez 2012: 548). Following in his footsteps, Magendie’s student Claude Bernard (1813–1878) studied the muscle relaxant effects of a paralyzing poison called “curare” (Dachez 2012: 552). The name of the toxin was derived from “urari”, an indigenous term from the Carib language spoken by the Macushi of Guyana. The term was used to refer to the poison used in arrows. A major milestone in the establishment of pharmacology as an indepen­ dent science came when the first chair for pharmacology was established at the University of Dorpat, and German pharmacologist Rudolf Buchheim (1820–1879) was appointed for the prestigious position (Scheindlin 2010). It was under Buchheim’s tutelage that one of the greatest pharmacologists of the modern age received his start. German chemist Oswald Schmiedeberg (1838–1921) served as an assistant to Buchheim at the University.

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Afterwards, he went on to publish over 200 articles and books in pharma­ ceutical science; and he trained more than 150 pharmacologists. His accom­ plishments played a major role in the success of the German pharmaceutical industry prior to World War II. Today, he is often considered the founder of modern pharmacology.2 In the US, one of Schmiedeberg’s students, the biochemist John Jacob Abel (1857–1938) also enjoyed an illustrious career. In 1890, he was appointed to serve as the first chair in pharmacology at Johns Hopkins University School of Medicine. It is thanks to his pioneering research that, in 1883, epinephrine was isolated from the adrenal medulla of a kidney.3 The name epinephrine is made up of the prefix epi-, meaning “upon”; and the Greek nephros, meaning “kidney”.4 Thousands of kilometers away, Japa­ nese chemist Jokichi Takamine (1854–1922) was busy isolating the same hormone. In 1901, Takamine trademarked his discovery under the name Adrenalin (Yamashima 2016). The name was based on adrenal, the Latin name for the gland located atop the kidney which he used to harvest the hormone: adrenal, meaning “at or near the kidney” (ad- + renal). At that time, many of the newly isolated substances which needed names were alkaloids, a class of naturally occurring organic compounds that contain at least one nitrogen atom (Hosztafi 1997). The onomastic trend was to name the discoveries after the plants from which the scientists had extracted the substances. For example, the malaria treatment cinchonine was discovered in 1811. Its name was formed by adding the suffix -ine to the plant used to harvest the pharmaceutical, the Cinchona officinalis. The plant was named after the Countess of Chinchon, who is credited as one of the first Europeans to be treated with quinine, and to have introduced the drug into Europe. The name given to the malaria treatment quinine (1820) was derived from the Quechua term kina, which the Spanish called quina (“bark”). The name nicotine (1828) was coined from the tobacco plant Nicotiana tabacum. The plant was named after the French ambassador in Portugal, Jean Nicot de Villemain, who sent tobacco to Paris in 1560. The extract from the bark of the willow tree falls into the genus Salix and served as the namesake for sal­ icin (1828). The antispasmodic agent, atropine (1833), takes its name from the New Latin Atropa, the genus name of the belladonna plant, which was named after the Greek Atropos, one of the three Fates. The namesake of the stimulant cocaine (1856) was the coca plant which was originally called cuca in Quechua. And finally, the opiate codeine (1832) was derived from the Greek term kȱdeia, meaning “poppyhead”. Botanical names were not the only source of inspiration for naming newly discovered pharmaceuticals in the 19th century. Morphine was isolated from the opium poppy in 1803 by the German pharmacist Friedrich Sertürner (1783–1841). Sertürner named his discovery Morphium after Morpheus, Ovid’s name for the God of Dreams. The name was inspired by the drug’s sleep-inducing properties. Almost one century later, in 1898, its derivative, heroin, was refined in 1874 by the English chemist Alder Wright (1844–1894),

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as the drug and its name were a registered trademark of the Friedrich Bayer - (“hero”) and & Company. The drug was named after the Greek term hḗros was sold as a cough suppressant for children. The substance narcotine was also isolated from the opium poppy in 1803 by French chemist Louis-Charles Derosne (1780–1846). Later, in 1832, its name was coined by the French che­ mist Pierre Robiquet (1780–1840). Derosne coined the term “narcotic” from the Medieval Latin term narcoticum (orig. Greek narkotikon) which means to “make numb or stiff”. Narcotine is still used as a cough suppressant today and is sold under the name noscapine, which is the Latinized spelling of gnoscopine, from the Greek term gnosis meaning “knowledge”, and op- from “opium”. The name emetine was coined from the Greek term “emetikos”, which means to cause vomiting, because of its emetic properties. The drug itself was originally extracted from the root of the Carapichea ipecacuanha plant. The original name of this plant was derived from the Tupi term ipe­ ga’kwãi which translates into “roadside sick-making plant”. In the 20th century, the botanical names of pharmaceuticals increasingly began to use the suffix -in(e). For example, the name penicillin was coined by Alexander Fleming (1881–1955) in 1929 (Brown 2023). Fleming named the substance after the scientific name of the mold from which it was first obtained, Penicillium rubens. The Latin term penicillus refers to the “paintbrush” struc­ ture of the fungus. The immunosuppressant medication cyclosporine (1969) has a similar genesis. Also isolated from a fungus (Tolypocladium inflatum), its pharmaceutical name indicates its botanical origin and morphology: the word “cyclosporine” is a combination of the Greek term cyclo meaning “round” and the Latin term spora meaning “spore”. A few years later, vincristine (1962) was extracted from and named after the flowering Vinca rosea, a species of peri­ winkle. The suffix -in(e) was not only used to create names of plant-based substances. The drug named imipramine (1957), for instance, was inspired by its chemical composition, and is made up of the first letters of “imine” and “propyl”, and the suffix –amine. The pharmacopeia of plant-based extracts was further enriched by physiological products such as pepsin (1836), which was found in gastric juices. Its name was coined by the German physician Theodor Schwann (1810–1882) from the Greek term pepsis meaning “digestion”. In 1848, pancreatin was isolated from the pancreas. Today, it is better known as “pancreatic lipase enzyme”. A digestive hormone produced by the wall of the upper small intestine was isolated in 1902 and named secretin after it was found to increase secretion in the pancreas. Two other pharmaceutical names that were inspired from bodily organs are heparin (1918) named after the Greek term hepar, meaning “liver”; and insulin (1922) which is pro­ duced by the pancreatic islets of Langerhans and was therefore named after the Latin word insula meaning “island”. At the same time that these and other physiologically based products were being discovered, harvested, named, and marketed, a breakthrough in pharmacology would lead the way to a new generation of synthesized drugs.

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In 1828, the German chemist Friedrich Wöhler (1800–1882) successfully synthesized urea from inorganic precursors. This innovation marked a revolutionary turning point in the history of clinical chemistry and pharmacology. Until then, in-vitro synthesis—the synthetic production of physiologically-occurring compounds in the laboratory through various chemical processes such as oxidation—had been considered impossible. Indeed, the processes that took place within living organisms were believed to involve a unique existential force that could not be duplicated in the laboratory (Wilkinson 2002). Wöhler’s success demonstrated that the complex processes that occurred in a living body were simply the result of chemical reactions, and as such they could be replicated to synthesize new pharmaceutical products on an industrial scale. According to Jones (2011), the first pharmaceutical companies were spin-offs of the textiles and synthetic dye industry and owe much to the rich source of organic chemicals derived from the distillation of coal. An excellent example here is the world-famous pharmaceutical company Bayer, which was founded in the German city of Wuppertal-Barmen in 1863 by dye salesman Friedrich Bayer and dyer Johann Friedrich Weskott. Using their chemical expertise, the two began to investigate the medicinal use of tar, a substance which had long been used as both a coloring agent and a medicinal ingredient. In particular, they and others investigated tar-derived compounds such as acetanilide, which turned out to have fever-reducing properties and was marketed as Antifebrin in 1886. The Bayer company set its sights on exploring the acet­ ylation of tar-derived compounds in hopes of producing other pharmaceu­ tical products. In 1897, one of their chemists, Felix Hoffman (1868–1946), produced a pure, stable, substance called “acetylsalicylic acid” (ASA). Soon thereafter, pharmacologist Heinrich Dreser (1860–1924) discovered ASA’s pain-relieving effects, and the substance was formally registered under the name Aspirin in 1899. The name was inspired by its synthesis (acetylation) and -spir, from Spiraea ulmaria, the botanical source of salicylic acid. The product became a huge commercial success. Inspired by the great potential wealth to be had, the late 19th century saw the establishment of many of today’s pharmaceutical powerhouses. Just a few include Pfizer, which was founded in 1849; Squibb in 1858; Glaxo, 1873; Lilly, 1876; Johnson & Johnson, 1886; Abbot, 1888; and Merck, 1891. With the discovery and mass-production of antibiotics such as penicillin at the end of World War II, the pharmaceutical industry exploded. By the second half of the 20th century, industry-sponsored research had helped to discover more than 100 essential molecules. It was at this time that a change began to occur in the strategy used to name new pharmaceuticals. As more drug products began to reach the market, the drug companies devised more dis­ tinctive, chemical-based names to distinguish their products. One example of this evolution can be seen in the development of barbituric acid. The name was coined in 1863 by German chemist Adolf von Baeyer (1835–1917) allegedly after St Barbara’s Day, the day von Baeyer discovered the drug.

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The name barbituric acid became the basis for naming many derivative pro­ ducts like the potent sleeping pill barbital, which was synthetized by German chemists Josef von Mering (1849–1908) and Emil Fischer (1852–1919). A simi­ lar substance was marketed in 1904 by Bayer under the trade name Veronal®: the name is alleged to have been inspired by the Italian city of Verona which was known as a peaceful tourist attraction. Phenobarbital, another profitable derivative of barbituric acid, was sold as a hypnotic by Bayer, under the trade name Luminal®, based on the Latin term lumen, meaning “light”. In 1923, Abbot launched another barbiturate by the name Neonal®, which combined neo- (“new”) with the familiar suffix -al. Within a few years of the discovery of barbituric acid, almost all major pharmaceutical companies had their own barbiturate—each with its own distinctive name. Along with the chemical composition, pharmaceutical products were also given names to commemorate the research sponsors. One example here is the famous blood thinner, warfarin. In the 1920s, the northern states of the US and Canada were struck by an outbreak of hemorrhagic disease among cattle that were grazing moldy sweet clover hay. In 1941, the US American biochemist and renowned expert in plant carbohydrate chemistry, Karl Paul Link (1901–1978), and his students managed to isolate a substance that reduced clotting in lab animals. They called it dicoumarol because of its structural similarity to the compound, coumarin which was first isolated in 1820. The name coumarin was derived from kumaru, a word that designates the tonka bean tree in Tupo-Guarani, a group of South American Indian languages. In 1820, French pharmacist Nicolas Guibourt (1790–1867) got the extract from the now outdated genus name, Coumarouna (Wardrop and Keeling 2008). Link and his students went on to develop a method for syn­ thesizing dicoumarol in the laboratory. Link realized that some variants of dicoumarol might have many other uses. Link’s research was funded by the Wisconsin Alumni Research Foundation (WARF). With their financial sup­ port, in 1945, Link developed a type of dicoumarol that was particularly effective as a rat poison. To recognize WARF’s assistance in filing the neces­ sary patent, Link named the compound warfarin (WARF + -arin from cou­ marin). Link later successfully developed a clinical-grade warfarin for human testing as a blood-thinner. In 1954, Warfarin received FDA-approval for use in the prevention of blood clots and was sold under the brand name Couma­ din®. Today, warfarin is the most widely used anticoagulant in the world. According to financial estimates, in 2021, the market-size of warfarin globally was valued at $535.66 million and is expected to exceed $550 million by 2027 (Marketwatch 2023). With profits this large, it is no surprise that pharmaceutical companies continue to invest heavily in expanding their product selection for the global market. Many of these new products are, however, simply variations of a previously released substance. Indeed, by the end of the 1990s, truly novel discoveries had become relatively rare. Instead, the market has been flooded by nearly identical copies of original molecules which allow manufacturers

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to maximize their profits. According to Angell (2004), from 1998 through to 2003, out of 487 drugs that were approved by the FDA, 68% were so-called “me-too drugs”, that is “drugs that contain minor variations of pharma­ ceuticals already on the market”(1451). The similarity between products has also come with corporate risks. Chief among them is the fierce financial competition which cuts the potential profits to be earned by single companies. To circumvent this problem, in recent years several rival pharmaceutical companies have decided to join forces to form mega-conglomerates. GlaxoSmithKline (GSK), for example, is the product of a merger between Glaxo Wellcome and SmithKline Beec­ ham. Even so, competition on the pharmaceutical market remains tough as manufacturers battle for consumer loyalty using nearly identical chemical substances. In the face of this rivalry, drug names are often the key to making one drug stand out on the market against its competitors. Given the terrific financial stakes involved, pharmaceutical companies invest heavily to hire specialist agencies to help them find and register winning brand names—sometimes even before a suitable drug product has been released for manufacture (Dutchen 2009).

The Basic Types of PDNs Drugs often have at least four names. When it is first discovered, it is given a CHEMICAL NAME by the International Union of Pure and Applied Chemistry (IUPAC). This name describes its atomic or molecular structure. For instance, the chemical name of the so-called “abortion pill” is (dimethyla­ mino)phenyl]-17α-(1-propynyl)estra-4,9-dien-17β-ol-3-one. Of course, such names are too complicated for general use (Karet 2019). For that reason, it is common for a shorthand version of the chemical name, or a CODE NAME, to be developed. The code name RU 486 is used for this pharmaceutical pro­ duct and is derived from the abbreviation for the pharmaceutical company that marketed it, Roussel-Uclaf (RU), and the product serial number, 486. When drugs undergo clinical trials, they are given a GENERIC NAME—an International Nonproprietary Name (INN)—which is proposed by the WHO. INNs are not subject to proprietary trademark rights but are entirely in the public domain. An INN is made up of stems, which can be prefixes, infixes, and more generally suffixes. These stems typically give information about a drug’s composition and class. The INN naming system has been standardized for consistency (e.g., names ending with -adol like tramadol belong to analgesics; -caine like lidocaine to local anesthetics; -tinib like imatinib to tyrosine kinase inhibitors; names starting with gli- like glime­ piride belong to antihyperglycemics, and sulfonamide derivatives; som- like somatropin to growth hormone derivatives; rifa-, like rifadine to antibiotic rifamycin derivatives, etc.).5 These specification policies help identify pharmaceutical uses. Consider, for example, the INNs used for monoclonal antibodies. They all follow a

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fixed pattern (prefix + target + source + mab for “monoclonal antibody”). Several abbreviated codes are also available for each of these constituents: target (ba for “bacterium”, fu for “fungus”, tu for “tumor”, ci for “cardio”, ki for “interleukin”, ne for “neural”, so for “bone”, toxa for “toxin”, vi for “viral” and li for “immuno”); and source (u for “human”, a for “rat”, xi for “chimeric”, i for “primate”, o for “mouse”, zu for “humanized”, xizu for “chimeric human”, and e for “hamster”). Thanks to this system, it is possible to decipher that the INN alemtuzumab is humanized (zu) and used for cancer (tu); abciximab is identifiable as a chimeric (xi) that is used for heart problems (ci); and adalimumab is fully human (u) and indicated for treatment of diseases of the immune system (li). Once a drug has been assigned an INN, it may also be given a countryspecific identifier, depending on the nation in question. There are many country-specific systems (e.g., the British Approved Name (BAN), French Dénomination Commune Française (DCF), Japanese Accepted Name (JAN), or United States Adopted Name (USAN)). These different national naming schemes may yield differing names for the same sub­ stances. For example, N-acetyl-para-aminophenol is called acetaminophen (acetyl + amino + phenol) in the US and paracetamol (para-acetyl + amino + phenol) in the European Union (EU). In the United States, unique nonproprietary names for medication to be marketed domestically are assigned by the United States Adopted Names Council (USANC). The USANC is an FDA-recognized nomenclature agency responsible for the selection of nonproprietary (generic) names for all chemi­ cal and biologic single-entity drugs marketed in the nation. It was established in 1961 as the result of a partnership between three organizations involved in the standardization of drug nomenclature (the American Medical Association, the American Pharmacists Association, and the United States Pharmacopeial Convention) after several major concerns had been raised: (1.) the existing system did not require selection of a nonproprietary name for each drug; (2.) there was no central list of names; and (3.) there was no legal requirement that all firms use the same name for an identical substance. USANC’s role is to systematize drug nomenclature and create useful and conflict-free generic names. The Council works in conjunction with the WHO INN Expert Committee, which is why names rarely differ. For instance, the INN/USAN name of RU 486 is mifepristone: its suffix -pristone indicates that the drug is a progesterone receptor antagonist. The USAN assignment is a necessary step in drug development before pharmaceutical products can be brought to the US market. Assignment of a USAN is required for any new drug before patients can have access to it. According to Karet (2019), over 10,000 drugs have received nonproprietary names since the WHO, the American Medical Association, the American Pharmacists Association, and the United States Pharmacopeial Convention began assigning names to drugs. In 2018, the USAN program named 198 sub­ stances. Since then, the number has grown steadily. The USANC mostly

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bases its assignments on INN stems, however, some variation does occur. By contrast, the European Commission requires all member states to use recommended INNs for all drugs. Alongside these names, pharmaceutical companies also develop a PROPRIE­ TARY NAME for each product. These names are subject to regulatory approval. For example, mifepristone was trademarked as Mifegyne®. This name must be approved by the FDA before the pharmaceutical product can be put on the market in the US. Once a pharmaceutical patent has expired, companies that make the drug are free to choose other names for their generic versions. As a result, mifepristone has been marketed as Medabon, Mifabon, Mifeprex, Mifeprin, Korlym, Termipil, etc. As this example shows, the prescription drug market is characterized by a constant introduction of new brands at the expense of existing brands. This onomastic dynamism is in stark contrast to the time it takes to bring a product to market. Launching a new drug takes an average of 12 years. In addition, only five in 5,000, or 10%, of drugs that begin preclinical testing ever make it to human testing. Only one of these five will ever receive approval for human usage. In the US, once the preclinical research is com­ plete, a pharmaceutical company must file an Investigational New Drug Application (IND) with the FDA to begin to test the potential new drug in humans. The FDA mandates a three-phase clinical trial, with a single phase costing upwards of $100 million. After all three phases of clinical testing have been completed successfully, a pharmaceutical company must then file a New Drug Application (NDA) with the FDA. Once the FDA approves the drug, it can then be made available for physicians to prescribe to patients.6 In 2020, the median cost of getting a new drug onto the market was esti­ mated to be $985 million.7 Drug patents are internationally recognized and regulated by the World Intellectual Property Organization (WIPO). Created in 1970, the WIPO helps to ensure that intellectual property (IP) is protected around the world. Patents issued by the WIPO last 20 years and may be extended by a maximum of seven years under certain special conditions (e.g., to help ensure the continued production of so-called “orphan drugs” for statistically rare diseases).8 To help make sure their financial stake in a product is secure, drug manufacturers often patent new compounds early in the drug research process to protect their IP. This strategy means that by the time their drug obtains approval, their WIPO patent may only last a few years. This is why some companies go to great lengths to have their patents prolonged. To extend their IP owner­ ship, drug companies may invest considerable funds in hopes of finding new indications, new formulations, or new routes of administration which can be used as an argument for prolonging their patent (Gupta et al. 2010). Once a drug patent fully expires, the way is paved for generic competitors to profit from the product. Therefore, the period of patent protection is crucial to maintaining a corner on the market and garnering maximum financial return. Pharmaceutical companies make about 80% of their overall revenue for a

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product during this period. This time is not only crucial for helping a com­ pany recoup its drug development costs; it also provides a unique opportunity for them to strengthen a brand’s identity to secure consumer loyalty before generic competitors reach the market. In this way, pharmaceutical companies can extend a drug’s life or profit long after a patent has expired.

An Overview of the FDA’s Best Practices in Developing Proprietary Names for Prescription Drugs (PNPDs) The FDA was established in 1906 with the Pure Food and Drugs Act (PFDA) that sought to give consumers more information to help them identify effective medicines. According to Donohue (2006), it was only after more than 100 people had died after taking a drug called elixir sulfanilamide that the US Congress passed the 1938 Food Drug and Cosmetic Act (FDCA). With this regulation, for the first time in US history, only drugs that had been proven safe were eligible to receive the FDA approval required for entering the market. Today, once a PNPD is found, company laboratories may apply for mar­ keting authorization with the FDA. The Division of Medication Error Preven­ tion and Analysis (DMEPA) is responsible for PNPDs.9 It reviews proposed names prior to their approval by putting them through a battery of tests. For example, the orthographic and phonetic similarity of a proposed PNPD to other names is assessed by using the Phonetic and Orthographic Computer Analysis (POCA) software.10 Proposed PNPDs may be handwritten and pre­ sented to healthcare professionals to determine their decipherability. It is also common to test how understandable PNPDs are when pronounced in different languages and across various settings, such as on the phone or in a noisy environment. Using these and other procedures, the FDA evaluates approxi­ mately 500 names per year and ultimately rejects four out of ten (Scutti 2016). In May 2014, in response to about 126,000 drug-related incidents, some of which were due to consumers confusing drugs with similar names, the FDA issued recommendations for naming newly branded prescription drugs (FDA 2014). The guidelines were subsequently revised in April 2016 (FDA 2016) and in December 2020 (FDA 2020). In the latest version, the FDA recommends sponsors avoid proposed PNPDs that are similar in either spelling or pro­ nunciation to existing PNPDs, established names, proper names, names of ingredients, or other consumer products. The Institute for Safe Medication Practices (ISMP), a nonprofit organization, publishes a list of confusing drug names that contains look-alike and/or sound-alike names. For example, Aldara®, which is used to treat superficial basal cell carcinoma, is reported as being unacceptably close to Alora®, which is used to treat the symptoms of vulvar and vaginal atrophy in menopause (ISMP 2017). The ISMP’s list is published to inform the public and the industry about medications that require special safeguards in hopes of reducing the risk of potentially dangerous errors. However, adherence to ISMP’s recommendations is not mandatory.

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When the FDA receives a medication error report, generally they make recommended changes to product labelling to avoid consumer confusion. For example, the FDA may suggest that a PNPD utilizes a mixture of upper- and lower-case lettering, employs different font sizes, alters layouts, or changes the colors. In rare cases, the FDA may exercise its regulatory authority and require companies to completely change a PNPD to eradicate medication errors resulting from name confusion. For example, in July 2005, the maker of the Alzheimer drug Reminyl® had to change the brand name to Razadyne® to help avoid consumer confusion with the diabetes drug Amaryl®. Another example is the blockbuster arthritis drug originally named Celebra®. After a pharmacy professor complained that it sounded too similar to the anti­ depressant Celexa®, the FDA required the pharmaceutical company to change the PNPD, and the replacement name Celebrex® was selected (Hoffman and Proulx 2003). The FDA recommends that proposed PNPDs refrain from incorporating any reference to inert or inactive ingredients contained in the pharmaceutical com­ pound, such as aspartame or sulfites, as doing so may mislead consumers into thinking that their functional importance to the product is greater than it actually is (FDA 2020: 5). For example, giving the analgesic Percocet® the name Percocet Povidone simply because it contains povidone—a synthetic polymer vehicle used for dispersing and suspending drugs—would, in all like­ lihood, make consumers wrongly believe that povidone has a therapeutic value. The FDA also recommends avoiding PNPDs that include or suggest the name of one or more, but not all, of its active ingredients (FDA 2020: 5). Such names can mislead the end-user by implying that the product contains only that ingredient. For example, naming the COVID-19 treatment Paxlovid®, which contains the two antivirals, nirmatrelvir and ritonavir, as Paxlovid ritonavir would be misleading, as this name makes no mention of nirmatrelvir and could lead consumers to believe that the treatment contains only one anti-viral agent. The FDA further states that proposed PNPDs may not contain an INN/ USAN stem (FDA 2020: 5). Using these stems could erroneously suggest that a product has a pharmacological or chemical trait that it does not. For example, the name of the antimalarial drug Malarone®, contains the stem -arone which is normally reserved for anti-arrhythmic drugs (e.g., amiodar­ one, dronedarone, etc.). This name might mislead some into thinking that it is also used to regulate cardiac dysrhythmia. This potential confusion is not the only reason why using INN/USAN stems is discouraged in PNPDs. The use of these regulatory onomastic elements for brand names could challenge the power of the USAN and INN to select names in the same series. Another FDA guideline for devising new drug product names is the avoidance of “brand name extension” (FDA 2020: 6). This naming strategy involves basing a new name on a PNPD that is already associated with one or more marketed drug products for a new product that does not share any active ingredient(s) with the pre-existing drug product(s). At the same time, sponsors are also warned to take special onomastic precautions when

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devising PNPDs for products that contain the same active ingredient(s) as a pre-existing product already on the market. When products that contain the same molecule are given entirely different PNPDs, consumers may be at risk of either overdosing or experiencing dose-related adverse events when they unwittingly consume the two products. If matters were not complex enough, the FDA also advises against devising PNPDs that are identical, or nearly identical, to foreign products on the market that contain an entirely different active ingredient. This warning stands even if the proposed product is to be marketed exclusively in the United States, or when the foreign product is solely sold outside of the United States. Moreover, the FDA also recommends that drug-makers refrain from using PNPDs that are reminiscent of, or identical to, a different product that is no longer marketed. This onomastic warning is given to avoid end-users continuing to associate the name with the original discontinued product (FDA 2020: 7). For example, using the name Myolastan for a new drug to help with, for example, weight control, after the muscle relaxant Myolastan® was withdrawn from the market in 2013 might cause some patients to wrongly believe that the old product was back on the market and could be used in the same way. PNPDs, according to the FDA directives, should also be readily pronounce­ able (FDA 2020: 38). This is to help ensure drug products are easily and cor­ rectly communicated by healthcare professionals when prescribing, ordering, transcribing, dispensing, and/or administering drugs. It also helps to avoid misunderstandings when healthcare specialists counsel patients on their medications. For those very same reasons, the FDA also discourages sponsors from proposing PNPDs that consist of a string of letters or num­ bers (FDA 2020: 8). A PNPD with digits might be misconstrued by con­ sumers as an indicator of recommended dosage. For much the same reason, sponsors are generally discouraged from incorporating symbols, dose designa­ tions, and medical abbreviations commonly used for prescription communica­ tion into their proposed PNPDs because their inclusion could inadvertently introduce a source of consumer error. The FDA recommends that sponsors avoid incorporating product-specific attributes, such as manufacturing characteristics, dosage form or route of administration into the proposed root of a PNPD (FDA 2020: 8). This recommendation is for a very pragmatic reason: it is not uncommon for a product’s attributes to change during a drug’s life cycle. Such changes could render the root PNPD inaccurate and thus unusable. Proposed PNPDs that incorporate the sponsor’s name in its entirety, or in part, are also to be avoided, according to the FDA guidelines (FDA 2020: 15). Some companies find this recommendation particularly annoying as the incorporation of a company name into a series of PNPDs can help create a link to a series of other products, already successfully marketed by the company. However, this marketing strategy also risks consumers becoming confused over which product is used for what health problem. The naming

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practice could pose safety risks when healthcare professionals who distribute or sell drug products store or list them alphabetically. And finally, the FDA strongly discourages the use of any PNPD that can convey false or misleading information (FDA 2020: 15). For instance, a proposed PNPD that risks misrepresenting the safety or efficacy of a pro­ duct must be avoided. Companies are to refrain from creating fanciful misleading PNPDs, for instance, that falsely suggest that a pharmaceutical product has a degree of effectiveness which it does not, or that it contains an unusual composition which it has not. To help protect consumers against such names, in March 2021, the FDA announced that it would be conducting an investigation, together with the Office of Prescription Drug Promotion (formerly the Division of Drug Marketing, Advertising, and Communications), to investigate misleading drug names that overstate their product efficacy or understate their risks. The goal of the study was to determine how drug names influence consumers and healthcare provi­ ders. The agency has suggested that, depending on the findings, it may update its drug-naming guidelines. As of the writing of this chapter, the research results are not yet published. While the FDA is principally in charge of reviewing PNPDs in the United States, in the EU, the EMA (European Medicines Agency) is responsible for the scientific evaluation of medicines. There are two routes pharmaceutical companies may take to apply for drug marketing authorization: the “mutual recognition” procedure, and the “centralized” procedure.11 The mutual recognition route involves a medication in one EU Member State receiving authorization by being recognized by another EU Member State. The “cen­ tralized” procedure allows a drug to be marketed after it has successfully undergone EU-wide evaluation. Within the EMA, the Name Review Group is responsible for assessing PNPDs. In 2021, the EMA released a seventh revised version of its guidelines on the acceptability of PNPDs for drugs (EMA 2021). Originally published in 2007, the 2021 version introduces several new require­ ments based on the FDA’s recommendations. The EMA regulations are gen­ erally still not as far-reaching as those used by the FDA.

Conclusion: How Big Pharmaceutical Companies Use PNPDs to Connect Brand Identity and Consumer Identity As indicated in the FDA’s guidance on best-practices for developing the pro­ prietary names for prescription drug products, today, the FDA reviews and approves new medicines at record pace, despite regulations for the approval of a PNPD remaining rather stringent. However, obtaining FDA approval is not the only hurdle drug companies face when devising new names for their pro­ ducts. In the United States and New Zealand, pharmaceutical companies are allowed to use broadcast advertising to extol the merits of their prescription drugs. This strategy is called “direct-to-consumer advertising” (DTCA). This “mixed” marketing strategy must not only effectively reach doctors, but also

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patients. Ferrier (2001) has this to say about the use of large-scale DTCA to promote prescription purchasing: [t]he permitted use […] has dramatically changed the landscape of brands, in terms of their levels of consumer awareness and the claimed level of prescriptions that have been made out by doctors as a result of branded consumer requests. (69) In recent years, potential effectiveness of DTCA has been increased by the incor­ poration of internet-based ads. This medium has provided another powerful (often unregulated) means of advertising prescriptions directly to consumers. To reach e-audiences, some pharmaceutical companies have begun to target patient advocacy groups to help promote their medications to treat their diseases. The rationale behind developing campaigns to reach this new consumer group is that patients are now more actively engaged in their care. This phenomenon of “patient empowerment” is defined by the WHO as “a process through which people gain greater control over decisions and actions affecting their health.”12 Such empowered patients, when targeted by DTCA campaigns, may ask their doctors for particular brands. To help ensure that these patients ask for their product when they speak with their healthcare providers, pharmaceutical com­ panies work very hard to attract consumers via effective logos, slogans, and packaging to make a brand unique. An integral part of this strategizing is devising names that are memorable and positive. The ultimate goal is to create a unique name that will avoid the regulatory and safety pitfalls of the government guide­ lines, while still appealing to both practitioners and patients. According to Scutti (2016), names are crafted as per four distinct dimensions: visual distinctiveness, melodic contrast, verbal velocity, and language neutrality (the absence of negative or offensive connotations in foreign languages). Government-sanctioned PNPDs that successfully meet each one of these criteria have an optimal chance of not only attracting consumer attention, but also creating a strong bond between a brand identity and the consumer’s identity. When this match occurs, the resulting relationship can be enormously profitable and remarkably long-lasting.

Notes 1 IMS Health, https://www.iqvia.com/ 2 International Society for the Study of Xenobiotics, https://www.issx.org/page/ Schmiedeberg. 3 https://www.worldofchemicals.com/273/chemistry-articles/john-jacob-abel-father­ of-american-pharmacology.html. 4 Etymological data in this section are all extracted from lalanguefrancaise.com, cnrtl.fr and etymonline.com. 5 World Health Organization, https://www.who.int. 6 FDA, https://www.fda.gov/drugs/development-approval-process-drugs/how-drugs­ are-developed-and-approved.

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7 London School of Economics and Political Science, https://www.lse.ac.uk. 8 WIPO, https://www.wipo.int. 9 FDA, https://www.fda.gov/drugs/drug-safety-and-availability/medication-errors­ related-cder-regulated-drug-products. 10 FDA, https://www.fda.gov/drugs/information-industry-drugs/phonetic-and-ortho­ graphic-computer-analysis-poca-program. 11 European Commission, https://health.ec.europa.eu/medicinal-products/legal-fra­ mework-governing-medicinal-products-human-use-eu/authorisation-procedures­ centralised-procedure. 12 World Health Organization, https://www.who.int/teams/health-promotion/enhanced­ wellbeing/seventh-global-conference/community-empowerment.

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tion/search-fda-guidance-documents/best-practices-developing-proprietary-names­ human-prescription-drug-products-guidance-industry. Ferrier, Hugh. 2001. “Successful Switch Strategies.” In Brand Medicine, the Role of Branding in the Pharmaceutical Industry. Edited by Tom Blackett and Rebecca Robins, 61–81. New York: Palgrave. Gangwal, Amit and Ankit Gangwal. 2011. “Naming of Drug Molecules and Pharmaceutical Brands.” Journal of Current Pharmaceutical Research 7, no. 1: 1–5. https://lawpunditsglobal.com/media/uploads/2013/10/Branding-of-Pharma-Products. pdf. Gupta, Himanshu, Suresh Kumar, Saroj KumarRoy, and R. S. Gaud. 2010. “Patent Protection Strategies.” Journal of Pharmacy & Bioallied Sciences 2, no. 1: 2–7. doi:10.4103/0975-7406.62694. Hoffman, James M., and Susan M. Proulx. 2003. “Medication Errors Caused By Confusion Of Drug Names.” Drug Safety 26, no. 7: 445–452. doi:10.2165/ 00002018-200326070-00001. Hosztafi, Sandor. 1997. “The Discovery of Alkaloids.” Die Pharmazie 52, no. 7: 546–550. Institute for Safe Medicine Practices. 2017. List of Confused Drug Names. https:// www.ismp.org/sites/default/files/attachments/2017-11/confuseddrugnames%2802. 2015%29.pdf. Jones, Alan. 2011. “Early Drug Discovery and The Rise of Pharmaceutical Chemistry.” Drug Test and Analysis 3, no. 6: 337–344. doi:10.1002/dta.301. Karet, Gail. 2019. “How Do Drugs Get Named?” AMA Journal of Ethics 21, no. 8: 686–696. doi:10.1001/amajethics.2019.686. Keller, Kevin, Susan Heckler, and Michael Houston. 1998. “The Effects of Brand Name Suggestiveness on Advertising Recall.” Journal of Marketing 62, no. 1: 48–57. doi:10.1177/002224299806200105. Lowrey, Tina M., L. J. Shrum, and Tony M. Dubitsky. 2003. “The Relation between Brand-Name Linguistic Characteristics and Brand-Name Memory.” Journal of Advertising 32, no. 3: 7–17. doi:10.1080/00913367.2003.10639137. MarketWatch. 2023, January 5. “Warfarin Market Insights 2023: Key Dynamics, Significant Growth Rate, Revenue Expectations, and Size Forecasts.” https:// www.marketwatch.com/press-release/warfarin-market-insights-2023-key-dynam ics-significant-growth-rate-revenue-expectations-and-size-forecast-to-2027-2023­ 01-05. Paling, Mike. 2001. “The Role of Advertising in Branding Pharmaceuticals.” In Brand Medicine: The Role of Branding in the Pharmaceutical Industry. Edited by Tom Blackett and Rebecca Robins, 113–129. New York: Palgrave, 2001. Room, Adrian. 1982. Dictionary of Trade Name Origins. London: Routledge and Kegan Paul Ltd. Scheindlin, Stanley. 2010. “Our Man in Dorpat: Rudolf Buchheim and the Birth of Pharmacology.” Molecular Interventions 10, no. 6: 331–335. doi:10.1124/ mi.10.6.1. Scutti, Susan. 2016. “‘Creation Engineering’: The Art and Science of Naming Drugs.” CNN. Accessed May 14, 2020. https://edition.cnn.com/2016/11/25/health/art-of­ drug-naming. Stepney, Rob. 2010. “A Dose by any Other Name would not Sell as Sweet.” The British Medical Journal 341, no. 7786. doi:10.1136/bmj.c6895.

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10 Naming Unnamed Diseases Governmental Policies, Historical Practices, and Identity Repercussions I. M. Nick

Introduction The International Statistical Classification of Diseases, Injuries, and Causes of Death (ICD) is one of the world’s leading tools for processing medical data. Since its introduction in the 20th century, it has been officially adopted by health systems in more than 100 different countries and translated into 43 different languages. Despite regular revision, its basic function remains unchanged: to identify, classify, code, and name tens of thousands of disorders known to plague the human body and mind. But what about those millions of people who suffer from a disease so new, so rare, or so unusual that scientists are unsure how, or even if, they should name it? Along with suffering debilitating physical symptoms, the non-medical consequences of having an “unnamed disease” (UND) can be significant and far-reaching. Without an officially recognized name for what ails them, UND patients may be severely restricted in their ability to obtain appropriate specialists, medications, and/or equipment to alleviate, if not completely eradicate, their suffering. Consequently, UND sufferers may face elevated rates of infirmity, disability, and premature death (Spillman et al. 2017). Through no fault of their own, anyone, anywhere, at any time, can find themselves in this position. However, as this chapter shows, the risk of becoming a UND patient may be higher for already vulnerable segments of the population. After offering background information on the prevalence of UNDs, information is provided on the most common strategies for naming diseases. The relative (dis)advantages of these traditional onomastic patterns are explored and the modern scientific guidelines for disease naming are pre­ sented. Finally, with multiple medical examples, this chapter demonstrates that the decisions over if, when, and how to name patients’ illnesses often go far beyond medicine, and reflect long-standing social inequities across individual and group demographic identities.

The ICD: What is it? In 1763, the French physician and botanist, François Boissier de Sauvages de Lacroix (1706–1767), published the ground-breaking work, Nosologia DOI: 10.4324/9781003431510-10

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methodica, which catalogued 2,400 of the world’s known diseases. Inspired by his long-time friend and colleague, the legendary Swedish taxonomist, Carl Linnaeus (1707–1778), Sauvages divided diseases into different classes, orders and genera, depending on their symptomology (Hirsch et al. 2016). Initially, Sauvages’s system was sharply criticized by traditionalists accustomed to alphabetical listings of disorders. Sauvages purposefully rejected this conven­ tion, arguing that it was both nonsensical and impractical. Alphabetized lists resulted in medically unrelated disorders such as apoplexy (stroke) and alo­ pecia (circular hair-loss) being placed next to one another, while wrenching “cognate diseases like arthritis and rheumatism far apart” (Hess and Men­ delsohn 2014: 478). Eventually, Sauvages’s method caught on, and the field of “nosology”—the study of the scientific classification of disease according to observed symptoms or established causes—was born. The utility of nosology was not only recognized by physicians. By the 19th century, it had also caught the attention of mathematicians interested in investigating diseases within and across nation states. These “statisticians” as they came to be called, reasoned that a standardized classification system with clearly defined nomenclature would finally make it possible to reliably determine the leading causes of death and disease within and across popu­ lations. This statistical information could then be used by governments to devise, implement, and regulate social welfare policies more efficiently (Goldstein Jutel 2011). One of the early supporters of this movement was British epidemiologist, Dr William Farr (1807–1883). Considered one of the founders of medical statistics, Farr was responsible for collecting mortality data for the British census. In the following passage, Farr discusses the imperative of developing uniform disease nomenclature: The advantages of a uniform nomenclature, however imperfect, are so obvious, that it is surprising no attention has been paid to its enforce­ ment in Bills of Mortality. Each disease has, in many instances, been denoted by three or four terms, and each term has been applied to as many different diseases: vague, inconvenient names have been employed, or complications have been registered instead of primary diseases. The nomenclature is of as much importance in this department of enquiry as weights and measures in the physical sciences and should be settled without delay. (Moriyama, Loy, and Robb-Smith 2011: 5) With this aim in mind, in 1893, Paris’s Chief Statistician, Dr Jacques Bertillon (1851–1922), presented the Bertillon Classification of Causes of Death. This rubric laid the foundation for one of the most widely used medical classifica­ tion tools today: the International Statistical Classification of Diseases, Injuries, and Causes of Death (ICD). Five years later, the American Public Health Association recommended the adoption of the ICD throughout North America and suggested its regular revision, like another major statistical population

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survey—the US Census. With each revision, the ICD was adopted by more nations for the compilation of health statistics. However, it would take nearly a century before the US government made the ICD mandatory. In 1996, the US Public Law 104–191, the Health Insurance Portability and Accountability Act (HIPAA), was passed. This regulation was part of a generalized plan to digitalize and standardize the official storage, manage­ ment, and regulation of health information at all levels of governance. Towards that end, the HIPAA mandated the use of the ICD medical nomenclature and diagnostic codes for all US healthcare and insurance institutions within 18 months of the Act’s ratification. Failure or refusal to comply could result in a $25,000 fine per calendar year. The reaction of the US healthcare industry was less than enthusiastic, to put it mildly. Private practitioners and large-scale conglomerates argued that the compulsory implementation of the ICD would not only be prohibitively expensive, both in terms of the financial and personnel resources; it would also significantly heighten exposure to legal liabilities from unintentional breaches of data security and patient privacy. To address these and other concerns, the com­ pliance deadline was continually delayed. In the end, it would take nearly 25 years before the HIPAA was officially implemented (Zeitlin 2015). On October 1, 2015, the official transition to the ICD-10 took place. Three years later, the 11th version, the ICD-11, was released. It was officially adopted by the 72nd World Health Assembly of the World Health Organization (WHO) in 2019. Since January 1, 2022, it has been the official health classifi­ cation system across all 194 WHO member states, including the US. Now fully electronic, the ICD-11 contains 17,000 diagnostic categories; over 100,000 medical diagnostic index terms; and approximately 55,000 codes for classifying diseases, disorders, injuries, and causes of death (WHO 2022a; WHO 2022d). To help ensure maximum coverage, the ICD is developed in close concert with other leading diagnostic systems. Chief among them is the Diagnostic and Sta­ tistical Manual (DSM) used by both the American Psychiatric Association and the American Psychological Association; the International Classification of Functioning, Disability and Health (ICF); and the International Classification of External Causes of Injuries (ICECI). By continually incorporating the cate­ gories, terminology, definitions, and codes used by these and other systems of diagnostic nomenclature, the ICD has established itself as the world’s leading classification rubric in the health sciences. The ubiquity of the ICD has helped to significantly decrease the opera­ tional costs and administrative burdens of data management in healthcare and insurance systems in the US and beyond. Its adoption has also increased the efficiency of health care services, administration, research, and regulation at the local, regional, national, and international levels of governance. However, as with any system of nomenclature, the widespread use of the ICD is not without its downsides. As will be shown in the next section, despite its impressive size and complexity, the ICD is by no means allencompassing.

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Unnamed Diseases: What Are They? Every year, scientists around the world discover new illnesses that have yet to be named. Examples include medical diseases caused by new strains of pathogen, and disorders due to extremely rare genetic mutations. For instance, in the spring of 2022, researchers from the US National Eye Institute reported the discovery of a genetic disorder which causes abnormal blood vessel growth underneath the retina and can produce a debilitating blind spot in a patient’s visual field. As of the writing of this chapter, this novel form of macular dystrophy has yet to receive a formal name (National Institutes of Health 2022). Although the discovery of this UND is new, its existence may not be. Like so many UNDs, it may well have afflicted human beings for thousands of years before it was finally detected. Very often, the reason a disease remains undiscovered and unnamed is simply that we lack the technology or procedures required to detect it (Goldstein Jutel 2011). History is filled with examples. Were it not for the technological innovations of visionaries such as Zacharias Janssen (1585–pre-1632), Robert Hooke (1635–1703), and Antoni Van Leeuwenhoek (1632–1723), it may never have been possible for pioneers like Louis Pasteur (1822–1895), Robert Koch (1843–1910), and Alexandre Yersin (1863–1943) to determine that diseases like rabies, tuberculosis, and anthrax are not the spontaneous spawn of non-living matter but the result of microscopic biological pathogens like Rabies lyssavirus, Mycobacterium tuberculosis, and Bacillus anthracis. Over the centuries, continued medical advances have made it possible to isolate, identify, name, and treat a plethora of maladies caused not only by biological agents foreign to and/or distinct from the human body; they have also helped uncover the biological roots of disorders buried deep within the genetic code of every human being. Despite this progress, it is important to remember that “when medical ‘proof’ of the legitimacy of one’s illness is missing, often it is just a matter of waiting for technology to catch up” (Dusenbery 2018a: 195). Other, more mundane, impediments to the successful discovery and naming of UNDs include inefficient record-keeping, inadequate training, limited access to diagnostic resources, rigid adherence to faulty theories, and staunch resistance to new ideas and pathways. Taken together, these obstacles account for one portion of UNDs. Another is made up of diseases that have already been identified and named but only affect a small population of people. Such “rare diseases” may be easily misidentified as UNDs.1, 2 An excellent example is Machado Disease or Spinocerebellar Ataxia Type 3 (SCA3). This exceedingly rare neurological disorder is marked by the progressive loss of muscular control responsible for walking, speaking, and swallowing. Patients may also exhibit cognitive impairments (National Institute of Neurological Disorders and Stroke 2022). Though extremely uncommon in the general population, this potentially fatal disease is comparatively prevalent among Aborigines in northern Australia (D’Angelo et al. 2020). It stands to reason that physicians

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who routinely treat patients from these communities may be familiar with this disorder and better able to name it when confronted with patients pre­ senting this symptomology. By comparison, doctors without this experience may find themselves at a complete loss when faced with this symptom set. When the standard tests come back negative, an inexperienced physician may mistakenly classify a SCA3 patient’s illness as an UND. Consequently, not all UND patients really are suffering from nameless diseases. Tragically, for over 40% of rare-disease patients, such misdiagnoses lead to treatment delays (Dharssi et al. 2017). Importantly, it is not only people with rare or emergent diseases who may receive an UND misdiagnosis. This fate may also befall patients with well-known diseases who either present with unusual symptoms (Kliegman, Ruggeri, and Marquardt Smith 2017; Graber, Gordon, and Franklin 2002), or who simply have the misfortune of having an incompetent, inept, or otherwise unqualified doctor (Spillmann, et al. 2017). As the International Undiagnosed Disease Network (UDNI) summarizes, “Undiagnosed rare diseases may include groups of unnamed disorders with common characteristics, phenotypically well described diseases, diseases with an unknown molecular basis or due to unknown, non-genetic factors” (UDNI 2023). Given this classificatory heterogeneity, it is easy to see why UND patients comprise such a large population. Within the US alone, it is estimated that more than 25 million people fall into this category. To put that statistic into perspective, according to the Multiple Sclerosis Society of America, there are about 1 million US Americans who have been diagnosed with this disorder (mymsaa.org); 1.6 million people in the US have Type 1 Diabetes (CDC 2022); 3 million adults in the US have epilepsy (CDC 2022); 4.5 million have some form of liver disease (CDC 2022); and nearly 6 mil­ lion have some form of dementia (CDC 2019). By comparison, the number of US residents known or suspected to have an UND exceeds all of these groups combined. Despite the remarkable size and heterogeneity of this patient population, the challenges they face may be remarkably similar, as will be shown in the following section.

UNDs between Diagnosis and Dismissal Without a name for their illness, UND patients frequently face many obstacles in finding a physician willing and/or able to provide them with sustained treatment. This difficulty is not only due to the unexpected medi­ cal challenges UNDs may present. The complexities of difficult-to-diagnose UND cases can be compounded by difficult-to-treat UND patients who manifest a generalized hostility toward or fear of any professional in a white coat. This fight-or-flight response may be particularly, but by no means exclusively, pronounced amongst patients who have struggled to find a solution to their medical health mystery for a protracted period (Clark 2022; US Government Accountability Office 2021). Frightened and frustrated with a medical establishment they have come to believe has abandoned them,

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some UND patients may project their feelings of exasperation and resentment onto the very professionals who are attempting to help them. Of course, patients are not the only ones susceptible to these unconscious processes. In numerous studies, it has been found that healthcare professionals may experience profound feelings of ineptitude, embarrassment, and frustration when they’re unable to identify a suitable or satisfactory physiological reason for their patient’s health issues (Chew-Graham et al. 2017; Spillmann et al. 2017; Nettleton et al. 2005; O’Dowd 1988). Without a definitive diag­ nosis, the UND physician faces a dreadful dilemma: do they continue to test, which carries “the iatrogenic risk of investigation”, or discontinue, which brings “the therapeutic risk of missing something important” (Stone 2015: 625). Either way, the consequences can be devastating. Against such odds, some medical practitioners may begin to (un)consciously project feelings of helplessness or even hostility onto their patients (Stone 2014). If left unchecked, this transference may progress to the point that simply seeing a UND patient in the waiting room, or reading their name on the appoint­ ment schedule, can cause even the most dedicated physician’s heart to sink (Rasmussen 2020; Greco 2012; Dorwick et al. 2005; Mathers and Gask 1995).3 Once this happens, the doctor-patient relationship so essential to obtaining an accurate diagnosis and appropriate care can completely erode, making constructive interaction impossible and referral inevitable. The bilateral breakdown in trust and communication is one of the reasons why some UND patients eventually develop long and complex medical his­ tories as they move from one practice to the next in hopes of finding some­ one who can finally put a name to what ails them. If they are lucky, they will eventually come across a health professional who is willing to take their concerns seriously and provide them with the support they need, regardless of whether they are able to definitively name the cause of the patient’s symptoms. If they are unlucky, UND patients will encounter someone who will insist that there is a simple reason why previous tests have come back negative: the patient’s illness is mental not physical (Goldstein Jutel 2011). In other words, the patient’s symptomology is not caused by the fact that they are ill but rather that they are making themselves ill; or in the case of underage UND patients, they are being made ill by a disturbed caretaker (US Governmental Accountability Office 2021). To be sure, Munchausen Disorder is real.4 There are well-documented cases of individuals who have serially caused grave harm either to them­ selves or others in an attempt to exert power or obtain sympathy, admira­ tion, or praise. However, no matter how much attention these criminal cases receive in the media, in reality, they are extremely rare. Even in psychiatric settings, it is estimated that less than 1% of patients have Munchausen, and the national incidence in the US is believed to be 6.8 cases out of 100,000 patients, which equals 0.000068% (Weber, Gokarakonda and Doyle 2022; Schrader, Bøhmer and Aasly, 2019; Hamilton et al., 2013). Does this mean that healthcare workers should never consider the possibility that a

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psychological disorder may help to explain a patient’s physical ailment? Quite simply, No. As modern epidemiological research consistently demonstrates, disease processes are caused by a multitude of interrelated factors: environ­ mental, social, cultural, hereditary, economic, physiological, psychological, etc. Unfortunately for many UND patients, the true complexity of their health and well-being is often reduced to the human body and psyche; and in the absence of findings that definitively confirm the former, the later may be automatically presumed (Spillman et al. 2017). It was this reductionist thinking that led to potential life-threatening neurological disorders like Multiple Sclerosis, Myas­ thenia Gravis, Huntington Chorea, and Neuroborreliosis (a complication of the tick-borne infection, commonly called Lyme Disease) all being routinely misdiagnosed as manifestations of psychosomatic disorders or even severe psychosis (Goldstein Jutel 2011; Nicholson, Willby and Tennant 1986). To avoid the suffering caused by such faulty attributions, in the absence of positive evidence, it is imperative that healthcare professionals resist the urge to jump to premature conclusions (Scott et al. 2022; Lickerman 2009).

Naming Diseases, Past and Present Historically, four basic strategies have been used to name UNDs. The first involves naming the UND after someone who had the disorder. One of the most famous examples of a patient namesake was Lou Gehrig, the legendary first baseman of the New York Yankees. In 1938, during Gehrig’s 14th season with the Yankees, it became apparent that the star’s game was off. As his former teammate, the great Joe DiMaggio, would later recall, during the Yankees’ spring training, the team was stunned as they watched Gehrig swing and miss 19 straight pitches. “They were fastballs, too, the kind of pitches Lou would normally hit into the next county. You could see his timing was way off […] Then he had trouble catching balls at first base. Sometimes he didn’t move his hands fast enough to protect himself” (Ray n.d.: para. 112). In 1939, Gehrig checked himself into the Mayo Clinic, where doctors performed an exhausting number of tests in hopes of discovering what was wrong. Soon, the culprit was identified. Lou Gehrig was suffering from a fatal degenerative neuromuscular disease. Upon hearing the disease name, Gehrig bristled. All too aware of the hoard of journalists champing at the bit to report his diagnosis, Gehrig replied: “That name is too technical. […] Can’t you describe my ailment in words that will be easier to understand?” Gehrig was correct. Not only was there tremendous media interest in his condition, the disease name caused terrible confusion. It did not take long before the press was falsely reporting that the great Lou Gehrig had been stricken with polio, the potentially deadly infectious disease that had just claimed the lives of some 9,000 New Yorkers in the 1919 epidemic. There was even some speculation that Gehrig’s illness might account for the Yankees’ recent slump. Could it be, reporters asked, that the entire team had been exposed to the deadly communicable disease? The

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resulting fear and condemnation triggered by confusion over the name of Gehrig’s disease left him and his wife, Eleanor, isolated and alone. In Sep­ tember 1940, a year after Gehrig’s diagnosis, The New York Daily News attempted to put the record straight. Under the headline “Our Apologies to Lou Gehrig and the Yankees”, sports-writer Jimmy Powers explained that America’s hero had not been diagnosed with the dreaded contagious disease called polio but with an exceedingly rare, noncommunicable, neuromuscular disorder called Amyotrophic Lateral Sclerosis (ALS). Soon, other news out­ lets picked up the story. However, just as Gehrig had predicted, most reporters avoided the formal disease name and simply referred to the illness as “Lou Gehrig’s Disease”. The name stuck. In the US, this eponym is still widely used, despite the fact that the namesake has largely faded from public memory.5 Ironically, unbeknownst to the press at the time, Lou Gehrig’s Disease already had an official eponym: Charcot Disease. It was named after the 19th century French neurologist, Professor Jean-Martin Charcot (1825– 1893), who is credited with being the first to diagnose the disease. This leads to the second onomastic strategy: naming a disease after the person(s) cred­ ited with first recording it in the scientific literature. While laypeople might be less than thrilled at the idea of becoming the official namesake of a disease, within the scientific community this act is considered a great honor. So much so that it is sometimes bestowed upon researchers who had nothing directly to do with the discovery of a UND. Today, the number of eponymous diseases is vast. It has been estimated that more than 8,000 different diseases carry the surname of a scientist (Ferguson and Thomas 2014) (e.g., Alois Alzheimer (1864–1915) → Alzheimer Disease; Harvey Cushing (1869–1939) → Cushing Disease; Charlotte Dravet (b.1936) → Dravet Syndrome; Hakaru Hashimoto (1881–1934) → Hashimoto Dis­ ease; Thomas Hodgkin (1798–1866) → Hodgkin Lymphoma; Elisabeth Kaveggia (1926–2014) → Kaveggia Syndrome; James Parkinson (1755–1824) → Parkinson Disease; Edith Potter (1901–1993) → Potter Syndrome). This once popular practice is now strongly discouraged for several pragmatic reasons. Aside from the fact that it is often quite difficult, if not entirely impossible, to determine which researcher was truly the first to document a UND, in reality, the discoveries of the world’s diseases are, more often than not, thanks to the work of a team of researchers rather than a single indi­ vidual. Consequently, eponymous naming presents two competing problems. On the one hand, privileging a few members of an entire group of investi­ gators simply on the basis of power, prominence, or position in the alphabet hardly seems fair. On the other hand, recognizing the efforts of all those involved in a disease discovery is rarely practicable or pronounceable. This has not stopped some teams from trying, though. In 1949, for example, Dr Frédéric Bamatter, a Swiss pediatrician from Basel, published a paper in Confinia Neurologica with several of his collea­ gues from Geneva: the ophthalmologist, Dr Adolphe Franceschetti; the geneticist, Dr David Klein; and the physician, A. Sierro. The article

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documented the group’s discovery of a hereditary disorder that produces severe growth restrictions and characteristic malformations of the skele­ ton, connective tissue, skin, and eyes. In honor of their collaboration, the UND was named Bamatter-Franceschetti-Klein-Sierro Syndrome. Though admirably egalitarian, the lengthy moniker, like many other eponyms, says very little about the disorder itself. Today, the condition is more commonly known by the descriptive scientific name Geroderma osteo­ dysplastica, or simply GO. A similar fate awaited the disease originally named Wardrop-Guillain-Barré-Landry-Strohl Syndrome, which is now simply called Guillain-Barre (in the US, even the accent was cut) (Teive et al. 2016). Aside from the above drawbacks, there is another important reason why eponymously named diseases have been on the decline: they can quickly fall out of favor once the character of their namesake falls into disrepute. Consider, for instance, Asperger Syndrome. The popularity of this eponym rapidly declined once the criminal conduct of its namesake, Austrian pediatrician Johann Friedrich Karl Asperger (1906–1980), finally came to light. During the Nazi period, Asperger helped send dozens of disabled children to their certain deaths in the Viennese psychiatric “clinic”, Am Spiegelgrund, where nearly 800 “undesirable” victims were systematically murdered (Sheffer 2018). Once the physician’s participation in these crimes became known, a movement began to replace Asperger Syndrome with other names such as “Autism Spectrum Disorder” (ASD). In principle, there was widespread agreement in both the medical and patient commu­ nities about the inappropriateness of using the name of a Nazi colla­ borator. However, in practice, the deletion of the name was far from easy—particularly for those who had grown up believing that Dr Asperger was a medical visionary who had championed the rights of disabled people in the Third Reich. So great was the international Autistic community’s identification with the famed physician that his surname had been inte­ grated into the institutional names of countless organizations; and not a few members of the ASD community had come to call themselves Aspies. As more and more disturbing details emerged about the neurologist’s active participation in and support of the Nazi’s genocidal policies and practices, his surname ceased to be a positive marker of individual and group identification. As bioethicist, Dr Peter Singer explained in an inter­ view with the Canadian Jewish Times: “We should not venerate an indi­ vidual who was complicit in Nazi euthanasia and eugenics. Nor should we disrespect those with autism spectrum disorder by linking them to such an individual” (Csillag 2018). Historically speaking then, one of the strongest arguments against eponymous disease-naming is that negative traits of the namesake can harm the patient population. Importantly, the same process of pejoration can happen in the reverse: the object after which a UND is named can also be negatively affected by features rightly or wrongly asso­ ciated with the disease (e.g., pain, disfigurement, pestilence, death).6

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To avoid the risks that come with this stigmatization, the scientific community has increasingly moved away from a third, once common, diseasenaming strategy: naming a UND after the geographical location where it was first identified and/or documented. Examples include Bornholm Disease, Ebola Hemorrhagic Fever, Hendra Virus Disease, Lassa Fever, Lyme Disease, Middle Eastern Respiratory Syndrome, Omsk Hemorrhagic Fever, and Rift Valley Fever. The problem with this onomastic practice is that the communities, cul­ tures, and peoples associated with this location may suffer enormous socio­ economic losses that can last generations. Added to this stigma is the fact that geographically named diseases may inadvertently lead to the erroneous assumption that only people who live in those localities are susceptible. For example, contrary to its name, the West Nile Fever (WNF) is by no means restricted to the West Nile district of Uganda where it was first isolated in 1937. According to the European Union’s European Centre for Disease Prevention and Control, WNF “is currently the arbovirus with the widest geographic dis­ tribution and can be found in parts of North and South America, Africa, Europe, Asia and Oceania” (n.d.: para. 1). By the same token, the risk of con­ tracting Rocky Mountain Spotted Fever is far higher in North Carolina than it is in the Rocky Mountains of Colorado where the causative organism was first identified (Taylor 2017). It is for all these reasons that the fourth, historically productive, method of naming UNDs has also fallen out of favor. These days, researchers are strongly encouraged not to name a UND after the first animal or plant spe­ cies it was found to affect. Disease names that specify a particular animal or plant species may cause consumers to avoid certain animal or plant pro­ ducts, which in turn can have devastating socio-economic repercussions for the communities that rely on this commerce. Moreover, in an effort to pro­ tect their markets against the fears incited by zoonymic or phytonymic dis­ ease names, more than one government has resorted either to tolerating or implementing radical, often wholly ineffective, policies aimed at reducing the named species. Such programs may threaten the survival of an entire species and endanger the ecosystem-at-large. A recent example of this cascade effect came with the detection of a new strain of influenza in the early 2000s. The virus was initially named “swine flu” once initial “laboratory testing showed that its gene segments were similar to influenza viruses that were most recently identified in and known to circulate among pigs” (CDC 2009). However, the viral infection, which was first attested in 2009 in Mexico, is not actually transmitted by pigs or the consumption of pork. Despite that fact, consumer health concerns lead to significant decreases in pork sales, import bans on pork products, and gruesome government-sponsored culling initiatives in which thousands of animals were slaughtered (Davis 2022). As the world’s largest pork exporters, the US was hit extremely hard by the outbreak. The fact that no case of pig-to-human transmission had ever been documented did nothing to sway the billion-dollar losses suffered by the nation’s pork industry after swine flu became a household term. As one

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Nebraska pig farmer told ABC news: “It’s like you’re getting blamed for something that’s not your fault […] It’s not just a financial aspect, it’s really disheartening, especially when the media use the label so loosely” (Selyukh 2009: para. 10). In an effort to mitigate the harms done, the scientific community sought alternative names for the identified UND (e.g., swine-origin influenza virus (S­ OIV); A(H1N1)Virus; H1N1/09; novel influenza A(H1N1); 2009H1N1 flu, H1N1 flu; A(H1N1)pdm09). The alphanumeric refers to the biological com­ position of the influenza virus (Hemagglutinin 1+Neuraminidase1); the letter “A” marks the first in the strain series; the abbreviation “pdm” is for “pan­ demic”; and “2009” or “09” is for the year the contagion was identified (CDC 2009; Enserink 2009; Morgridge Institute for Research). Eventually, officials settled on H1N1. However, many in the US general public preferred to use the name Mexican flu. Not surprisingly, this moniker helped conflagrate hos­ tile anti-immigration rhetoric and motivate acts of hate against the nation’s Latinx communities (Schein et al. 2012; Schoch-Spana et al. 2010; Scherr and Holthouse 2009). Far from being a neutral marker of the first recorded geo­ graphical site of contraction, Mexican flu was quickly fashioned into a lin­ guistic weapon. This example is by no means isolated. Throughout history, disease names have been commonly used to malign different cultures and peoples (Nick 2021; Taylor 2017). It is no accident that the potentially fatal, grossly disfiguring sexually transmitted infectious disease caused by the bac­ terium, Treponema pallidum—otherwise known as syphilis —was once called the French Disease by the English, the Spanish Disease by the Dutch, the Russian Disease by the Polish, and the Chinese Disease by the Japanese (Taylor 2017). To circumvent the above-mentioned negative repercussions of diseasenaming, in 2015, the WHO has issued policy guidelines for designating UNDs. One of the strongest recommendations is the avoidance of naming diseases after a particular nationality, ethno-racial grouping, religion, or culture. Although once defended as neutral and informative markers, scientists now recognize that such names can be misused to perpetuate dangerous prejudices and encourage acts of discrimination (Nick 2021). For many of these reasons, the 2015 WHO guidelines also discourage the use of disease names that mark particular occupations (e.g., Bricklayer’s Itch, Hatter’s Shakes, Mushroom Pickers Disease, Legionnaires’ Disease, Painter’s Colic, Teamaker’s Asthma, Woolsorters Pneumonia, etc.). Along with issuing onomastic prohibitions, the guidelines also make con­ crete suggestions. The WHO recommends, for example, that UNDs include generic descriptive terminology to indicate the leading symptoms, physiological process, anatomical structures or systems that are involved (e.g., cardiac, gas­ trointestinal, muscular, neurological, respiratory). It is also suggested that dis­ ease names include more specific descriptors that indicate, for instance, the typical age-group affected (juvenile, pediatric), the time course (acute, chronic, episodic, transient), the disease origin (acquired, congenital, contagious,

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iatrogenic, idiopathic), severity (severe, mild), causal pathogen (adenovirus, corona virus, cyanobacteria, staphylococcus), and the year of detection (i.e., 2009). Despite the value of these recommendations, they remain simply that. The WHO can neither penalize the continued use of misleading, pejorative, archaic terminology; nor can it mandate the adoption of new, accurate, neutral disease nomenclature. Compliance is reliant on the voluntary cooperation of the international health science community and governmental decision-makers. Despite broad appreciation of the value of standardization terminology to promote data transparency, consistency, accuracy, and sensitivity, there is reg­ ular disagreement over which terms are the best to achieve these aims, as will be shown in the following section.

Variation and Discord in Naming UNDs When faced with a UND patient, some physicians may intentionally decide to record a disease name which they know or suspect may be incorrect, but which is nevertheless close to what they believe the patient has. This strat­ egy is not only adopted by doctors who simply want to rid themselves of “heartsink” patients. It may also be taken by compassionate physicians who understand that without a recognized ICD diagnostic name, the people in their care may be unable to apply for and obtain much needed medical resources (e.g., specialist referrals, medications, and tests) (Gorman and Petrie 2012). Moreover, in many countries, gaining access to employment protections, early retirement options, disability-based assistance, welfare benefits, insurance coverage plans and services are directly contingent upon receiving an ICD name and code (Plaza 2022; Nettleton et al. 2005). Though well meaning, this UND naming strategy is not without its dangers. It may, for instance, result in a UND patient receiving medical treatments which are at best ineffective and at worst hazardous. UND misnaming may also pre­ clude the discovery of the correct name and the initiation of appropriate treatment. Symptoms that began as intermittent and mild may consequently become chronic and severe; minor complaints that may have once been fairly easy to control, if not cure, may, in the absence of correct identification, lead to irreversible damage or even death. Given these dangers, healthcare professionals, particularly when pressed for time, may simply record the name of the symptom which seems to be causing the UND patient the most difficulty. Though seemingly expedient, this strategy may ultimately thwart the subsequent diagnosis of underlying disease process. Exactly this happened to the then 28-old-year African American mother of two, Ashley Teague (Young 2022). After experiencing unexplained pain in the left side of her abdomen and significant uninten­ tional weight loss, she visited her physician. During the consultation, Ms. Teague revealed that her mother had been recently diagnosed with cancer. Her physician ordered a series of standard blood tests. When the results all came back negative, the doctor advised the young mother to reduce her

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stress and change her diet. A few weeks later, Ms. Teague returned and reported that in addition to her original symptoms, she was now suffering severe insomnia, extreme abdominal pain, and frequent bouts of bloody diarrhea. Her physician ordered more tests. Once these results also came back negative, the doctor concluded that Ms. Teague’s complaints had no medical explanation and assigned the gastrointestinal UND the name Irritable Bowel Syndrome (IBS). Months went by and Ms. Teague’s condition continued to worsen. Nevertheless, each time she asked for a colonoscopy, her requests were denied. Finally, after nearly a year had passed, her doctors relented and a colonoscopy was performed. The procedure revealed that Ms. Teague’s symptoms were not due to IBS at all but a baseball-size malignant tumor in her gastrointestinal tract. An emergency surgery was conducted and all but a few inches of intestine had to be removed. Subsequent genetic testing revealed that Ms. Teague’s colorectal cancer was due to a hereditary condi­ tion called Lynch Disease. 7 Taken together, the complaints which Ms. Teague reported were a textbook case (CDC n.d.) which should have immediately rung alarm bells. Seen in isolation, however, the severity and urgency of her condition were repeatedly and almost fatally overlooked. Sadly, as postmortem studies have shown, such diagnostic errors are hardly rare (Kuijpers et al. 2014; Winters et al. 2012; Shojana et al. 2003; Tai et al. 2001). In the US alone, an estimated 40,000 to 80,00 people die each year as a result of diagnostic errors (Dusenbery 2018b).8 In hopes of reducing these risks, some activists have pushed for the adoption of UNDs that underscore the potential connectedness of patients’ symptomology. The names Medically Unexplained Symptoms (MUS), Medically Unexplained Disease (MUD), and Symptoms Without a Name (SWAN) are increasingly common designators for UNDs. Advocates of this collective terminology assert that such nomenclature may not only assist UND patients by providing them a concrete name for their complaints. These terms, they argue, might also help physicians and researchers in their search for final, more definitive diagnoses. After all, the fact that a disease is unexplained does not mean that it is “unexplainable” (Malterud 2019; Dusenbery 2018a). By bringing together an otherwise disjointed number of complaints, nomenclature like SWAN and MUS may help to remind experts that a common denominator may be in operation. This is precisely the reason why some in the medical community take issue with this terminol­ ogy. By lumping together disease processes which may have little or nothing to do with one another, such nomenclature may make it even more difficult for experts to identify what is really going on. Take for example, Irritable Bowel Syndrome and Chronic Fatigue Syndrome. Although both are medi­ cally unexplained, they each affect entirely different systems, present with completely different symptoms, and require wholly different courses of treatment. That being the case, it also stands to reason that the two dis­ orders also may have two radically different causes. From a research and

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treatment point of view, there may be very little to gain by lumping the two syndromes into the same diagnostic category. As critics of this type of termi­ nology explain, names that define “patients’ symptoms by what they are not, rather than what they are” are ultimately counterproductive to diagnostic and treatment goals (Creed et al. 2010: 5). According to Marks and Hunter (2015), aggregate disease names for UNDs typically offer “no insight into the cause, duration, severity, or significance of symptoms” (109). Such nomenclature therefore directly violates the modern guidelines of disease naming and essentially creates conceptual junk drawers or wastebaskets into which any malady without a clear classificatory home may be tossed and forgotten (Rasmussen 2020; Goldstein Jutel, 2011).9 Other experts assert that, if a col­ lective term must be used, it would be more appropriate to use names which stress their probable psychogenic origin (e.g., Bodily Distress Syndrome, Complex Somatic Symptom Disorder, Conversion Disorder, Dissociative Neurological Disorder, Factitious Disorder, Functional Disorder, Somatic Symptom Distress, Somatization, Somatoform Disorder, etc.). The fact that many of these names are routinely used by medical personnel as dysphemistic synonyms of hypochondriasis, histrionic personality disorder, and malingering has not helped to increase their palatability—a key variable to promoting a positive identity and sense of well-being amongst patients (Van Bulck et al. 2019; Dorwick et al. 2005; Ziporyn 1992). To a certain extent, given the number, frequency, and heterogeneity of UNDs, it should come as no surprise that there is considerable variation in the ways UNDs are perceived and treated, named and coded (Pohontsch et al. 2018). Nevertheless, this lack of uniformity means that, at least as far as UNDs are concerned, one of the main objectives of mandating the use of standardized diagnostic nomenclature—providing consistent, transparent, and reliable health information data—is not being satisfactorily met. Incon­ sistencies in the diagnostic nomenclature are not without consequence for patient care. As the Every Life Foundation for Rare Diseases (2022) explains, it is commonplace for medical policy decisions over whether to accept new therapies to be “based on an assessment of how many individuals covered by their plans have a particular diagnostic code in their record”. Variance in the assignment of diagnostic terminology and codes can directly impact those decisions. On the surface, this could be read as a failing of the ICD as a standardized tool. However, as will be illustrated in the following section, these inconsistencies may well be indicative of deeper disparities.

A Modern Example of Confirming and Naming a UND: the PostCoronavirus Disease In the first year of the pandemic, reports began to appear about a small but steady number of patients who survived the infection but were unable to make a full recovery. Their symptoms ranged from extreme fatigue, chronic shortness of breath, severe chest pain, and episodic fevers to crippling

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depression, anxiety, and a generalized inability to concentrate. Importantly, many of the patients reporting these post-viral symptoms were medical professionals themselves (British Medical Journal 2020); people like Scottish physician Dr Amy Small, who had contracted the virus while battling on the pandemic frontlines. In a 2021 interview with The Atlantic, Dr Small described her symptoms: “It was a whole level of bodily dysfunction that I didn’t know could happen until I experienced it myself” (Young 2022: para. 11). Despite the regularity and severity of these reports, repeated diagnostic tests remained unable to detect any active virus in these patients. These negative findings lead some physicians and researchers to insist that these patient complaints were due to over-work and/or an over-active imagina­ tion. For many COVID survivors in the healthcare profession, being at the receiving end of this medical stonewalling was a devastating, life-changing experience. As Alexis Misko, an US American occupational therapist who suffered long-term effects of COVID 19, explained: “The moment I became sick, I was just a patient in a bed, no longer credible in the eyes of most physicians” (2021: para. 3). It did not take long, however, before the inter­ national medico-scientific community had little choice but to pay heed. By 2022, it had become clear that a significant portion of people infected with SARS-CoV2 would continue to experience physiological symptoms for several weeks, months, or even years (NIH Recover). As of September 2022, the UK government reports that approximately 2.3 million British residents fall into this patient group (ONS 2022). In the USA, the CDC estimates that one in 13 adults have COVID symptoms which have lasted three months or longer (CDC 2022). In Australia, the findings are similar, with experts predicting that one in every five people who are diagnosed with COVID will “still experience symptoms after a month” and “5% will have symptoms that linger beyond three months” (Woodley 2022: para. 6). Canadian authorities are finding the same trend, with some 1.4 million residents continuing to experience COVIDrelated symptoms three months after initial infection (Saeed 2023). In India, the situation may be even more dramatic, with a 2022 study reporting that 65% of respondents indicated that they know of at least one person in their immediate social network who is still battling COVID-19 after-effects (Chada 2022). Similar findings have been reported in other nations. Worldwide, within the first two years of the pandemic, at least 145 million people had reportedly suf­ fered persistent post-viral symptoms (WHO 2022b). As the number of post-COVID patients increased, so too did the names suggested to label this once refuted UND (e.g., chronic COVID, COVID-19 Syndrome, Long COVID, long-haul COVID, post-acute COVID-19, postacute sequelae 10 of SARS CoV-2 infection (PASC), post-Covid condition (PCC), post-acute COVID syndrome, prolonged covid, post-COVID-19 conditions, and severe Acute Respiratory Syndrome Coronavirus 2 (CDC 2022; Baig 2020)). While some of these names are primarily used by researchers, others are preferred by the general public. As of the writing of this chapter, the WHO has chosen to take a middle-of-the-road approach. It

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uses the scientifically accepted name, Post COVID-19 Condition (PCC) in combination with the colloquial name Long Covid (WHO 2022b). As knowledge about this condition increases, this naming strategy may well change. This dynamic nominalization has been accompanied by a sustained push for new, COVID-specific ICD codes. Already in September of 2020, at the behest of multiple member states, the WHO instituted a set of emer­ gency ICD codes to be used for post-COVID19 conditions and causes of death (WHO 2022c). As of July 2021, the US government officially recog­ nized Long COVID as a “disability” under Sections 504 and 1557 of the Americans with Disabilities Act (US Department of Health and Human Services 2022). And in October 2021, some 19 months after the WHO had officially declared COVID-19 to be a pandemic, the CDC and the National Center for Health Statistics implemented the specific U09.9 code for Post COVID-19 condition, unspecified. The comparatively speedy nominalization and codification of the post­ COVID-19 UND was due in large measure to the distribution, frequency, and spread of the disorder. The global wave of illness within such a compressed time period was simply too large and too obvious to continue to ignore, deny, or dismiss. However, the epidemiology of PCC may not have been the only reason why it was so quickly recognized, named, and codified. Another con­ tributing variable was no doubt that so many of those stricken were healthcare professionals. As established members of the medico-scientific establishment, this patient-group was in a unique position to help shape the disease narrative and demand attention. “The active engagement of healthcare professionals and ‘medically literate academics’ who were themselves affected, led to a more rapid and wider acceptance of long covid than other contested conditions” (Maclean et al. 2023: 2). This UND, they argued, was not simply a health hazard to the general public; it was also a specific threat to all first responders. That said, not all members of the healthcare community have been afforded the same privileges of this “we-identity”. In March 2020, Black epidemiologist, Dr Margo Gage Witvliet, con­ tracted COVID-19. A healthy, active mother of two, with no history of auto-immune disease, she was fully expected to make a complete recovery. Instead, Dr Gage was in for the fight of her life. In May, she was rushed to the local emergency room with seizures. Her attending physicians were mystified by her “failure” to improve and questioned the veracity of the PCC symptoms she was reporting. And so began what Dr Gage calls her “journey down the rabbit hole of the American healthcare system” where she was “not listened to by doctors, not taken seriously and infantilized” (Gage Witvliet 2022: para. 3). Undaunted, Dr Gage put her skills to work and began to seek out other PCC patients online. Rather quickly, a pattern emerged: “I started seeing women, all women irrespective of color who were crying and telling stories about how doctors didn’t believe them” (Gage Witvliet 2022: para. 7).11 This pattern of medical gaslighting did not emerge with PCC. There is, in fact, a wealth of compelling anecdotal and empirical

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evidence that healthcare workers disproportionately dismiss, downplay, ignore, and/or deny the health complaints of patients who identify as not-male, an immigrant, indigenous, a person of color, disabled, underage, LGBTQ+, a senior citizen, or a member of some other minority group (Caron 2022; Plaza 2022; Kilkus 2022; D’Angelo, et al. 2020; Godlee 2020; Yancy 2020; Claréus and Renström 2019; Westergaard, et al. 2019; Dusenberry 2018a; Kim et al. 2018; Romano 2018; Samulowitz et al. 2018; FitzGerald and Hurst 2017; Karani et al. 2017; Chapman et al. 2013; Maserjian 2009; Armitage, Schneiderman and Bass 1979). In a 2021 report issued by the US Government Accountability Office, (un)conscious physician bias resulting in the propensity “to discount reports of symptoms from certain people or fail to order diagnostic tests they would order for other patients” is one of the major causes for misdiagnoses (15). In the case of UND patients, this longstanding pattern of institutionalized bias can sig­ nificantly reduce the chances that their disorder will ever be acknowledged, named, and coded, let alone investigated, treated, or cured.12 Of course, the identification and nominalization of a UND does not mean that effective treatments will automatically become available. There are, after all, countless named diseases that are progressive, incurable, and/or fatal. However, patients who have a name for their illness are in a much better position to receive appropriate treatment and institutional support. They are also more able to seek out and network with others with the same condition, be it in-person or online (Spillman et al. 2017; Goldstein Jutel 2011). These special communities can offer patients and their families essential emotional support, serve as invaluable hubs for information exchange, and become powerful poli­ ticized centers to lobby for improved services. Without a formal name for their illness, UND patients and their loved ones have historically had great difficulty finding such support. However, in recent years, with the rise of collective autonyms like MUD, MUPS, MUS, and SWAN, UND patients have been able to form their own communities with their own group identities (Barker 2008). The importance of these UND groups was powerfully expressed by a member of SWAN UK, a British support network for families of children who have a syndrome without a name. As the parent explained, without a name for their child’s disease, “there was no place for me in groups/organisations for diag­ nosed conditions and syndromes. It is important for me to have somewhere where we are all ‘in the same boat’ even though our children have varying needs and difficulties” (Undiagnosed.org).13 Thanks to organizations like SWAN UK, UND patients and their families are finally in a position to offer one another the emotional, social, and informational support they need on their shared journey (Van Bulck et al. 2019; Goldstein Jutel 2011; Ziporyn 1992).

Summary and Conclusion Within a community, the act of naming an entity may not only recognize its social significance, but also validate its very existence. By extension, the principles that underlie classification systems and their nomenclature “both

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constitute and reflect the very nature of identities” (Armstrong 2011: 802). For these reasons, the authority to bestow or change official names is usually restricted to a small group of language-users with elevated institutional powers. For the health sciences, this elite circle has traditionally been limited to researchers and practitioners. Despite widespread adherence to longstanding onomastic conventions, for much of history, these “namers” of disease have operated without an overarching international system of nomenclature with a clearly defined set of policies and standards. All that changed with the introduction of the ICD. Over the years, governmental mandates to adopt the ICD has significantly improved the inter- and intra­ national transparency and consistency of disease names. This, in turn, has greatly facilitated the efficient collection and reliable analysis of health data used for policy development, implementation, and regulation at all levels of governance. As this chapter has explored, however, the preeminence of the ICD nomenclature may have come at a considerable cost for those people whose illnesses are (as yet) unrecognized and unnamed in the rubric. Although some have been quick to blame the ICD for these inequities, in many ways, the difficulties surrounding the naming of UNDs are simply a reflection of a universal problem faced by all standardized systems of classifi­ cation nomenclature: namely, what to do with anomalies (Armstrong 2011). The truth is, no system of nomenclature, even one as extensive as the ICD, can ever be exhaustive. As one 19th-century British physician rightly observed: “The imperfection of our medical vocabulary is not a matter for surprise. It is the measure and gauge of the imperfection of our medical knowledge” (quoted in Goldstein Jutel 2011: 12). Seen from this per­ spective, rather than being a cause for consternation, the current lack of UND terminology that enjoys broad acceptance by both physicians and patients may be seen as a linguistic demarcation of the frontiers of scientific exploration. Lucky for us, the ICD was conceived as a tool for naming, cataloguing, and counting not only known, but also unknown and/or emergent causes for death, disease, and injury. By systematically recording the signs and symptoms of UNDs, healthcare workers can provide epidemiological evidence which may prove invaluable for the future UND identification, nominalization, intervention, prevention, and treatment. Despite these laudable goals, truth be known, most doctors presumably did not enter the profession to spend their days collecting statistical data. Yet, thanks to governmental regulations, all too often their time is taken up with processing seemingly endless numbers of forms requiring an evergrowing stream of alphanumeric codes (Hanssen, Ras, and Rosmalen 2021). It has been estimated that US physicians consequently spend two-thirds of their time completing paperwork, even during their face-to-face consulta­ tions with patients (Lee 2016). The negative impact upon healthcare services is not lost on doctors. In a 2022 survey of US physicians, six out of ten (61%) indicated that they had no time to satisfactorily address the standard healthcare needs of their patients, to say nothing of the special needs of

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UND patients (Physicians’ Foundation). In reality, the average doctor simply does not have the time, resources, or expertise to provide the specialized, sustained care that UND patients and their families so often require. Increased recognition of these administrative limitations has led to important governmental interventions. For example, in 2002, the US Con­ gress passed the Rare Diseases Act which established the Office of Rare Diseases under the NIH; and allocated funding for the creation of regional rare disease centers. Four years later, the “Rare Diseases Clinical Research Network” was established and endowed with $55 million to promote colla­ borative medical research on rare diseases. This groundbreaking legislation was followed in 2013 by the establishment of the Undiagnosed Diseases Research and Collaboration Network for the investigation of medically unexplained chronic multi-system diseases (MUCMI). Since its founding, the NIH Undiagnosed Diseases Network has successfully discovered and named 23 genetic disorders. However, as the Network Director, Dr William Gahl, explains, their moral remit goes beyond looking for cure: “practically every patient or every individual who came to our undiagnosed diseases program […] got enormous benefit from it even if it wasn’t life-saving. And, that benefit is having a community, having a diagnosis, not being suspected by their colleagues and their friends and their family of making it up” (Gahl, in interview with Jones 2022: para. 3). As Gahl sagely reminds us, for UND patients and their families, the search for a diagnostic name is not exclu­ sively driven by the desire to find a cure. The quest for an acceptable diag­ nostic name is also a manifestation of every person’s fundamental need to have the truth of their lived experiences acknowledged, their expertise in their own health condition valued, and their identity as the primary stake­ holder in their current and future well-being respected.

Notes 1 The incidence threshold for designating a disease as being “rare” varies. In the European Union and Canada, for example, this classification is applied to dis­ eases that affect less than 1 in 2000 people; in Australia, a disease may be con­ sidered “rare” if less than 5 in 10,00 people have it. In the United States, the threshold is a total incidence of less than 200,000 people (Khosla and Valdez 2018). Based on statistics gathered by the National Institutes of Health, in the US about 50% of people with a rare disease are children (US Government Account­ ability Office 2021). 2 Ironically, although the total number of people who have any one of these dis­ orders is, by definition, small, the total number of people with a rare disease is surprisingly large. According to the United Nations, worldwide, there are approximately 300 million people living with a rare disease. The US National Institutes of Health sets the number even higher and estimates that approxi­ mately 8% of the global population or 350 million people have a rare disease. Of this group, a not insignificant number are without a name (i.e., UNDs). 3 Dr Thomas O’Dowd is credited with being the first to coin the term “heartsink patient”. It is interesting to note that in his overall disparaging description, he makes a point of stating that these patients “often have serious medical

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I. M. Nick problems” (169). Unfortunately, over the years, this part of his essay seems to have been overlooked. What is remembered is O’Dowd’s condemnation of these patients for “the distress they cause their doctor and the practice” (169). The name of this disorder was coined in 1951 by British physician Sir Richard Asher (1912–1969) in a 1951 article for “The Lancet”. Asher borrowed the name from the main character of the novel, Baron Munchhausen’s Narrative of his Marvellous Travels and Campaigns in Russia. The novel, written by German author Rudolf Raspe (1736–1794), first appeared in print in England in 1785 and was inspired by the post-war confabulations of the real-life German Baron, Hieronymus Karl Friedrich, Freiherr von Münchhausen (1720–1797). This means the disorder name Munchausen Syndrome is a characteronym that was based on an eponym. Other disease names inspired by fictional characters include the Rapunzel Syndrome, the Cinderella Syndrome, and the Peter Pan Syndrome. For more on this name type, see Donoso and Arriagada 2019; Taylor 2017. These days, ALS may be more strongly associated with another famous person diagnosed with the disease, British scientist, Stephen Hawking (1942–2018). For all the reasons mentioned above, the use of medical eponyms has gradually declined in favor of scientific descriptions. However, as diachronic research con­ ducted by Thomas (2016) has shown, the decrease has been exceedingly slow, man­ ifesting a decline of less than 5% from 1991 to 2014. The exceptions are medical eponyms named after scientists who committed crimes against humanity during the Third Reich. These ill-gotten names have almost been completely eradicated from modern-day usage. Examples include Wegener granulomatosis, named originally after German pathologist Friedrich Wegener (1907–1990) and is now called granu­ lamatosis with polyangiitis; Reiter’s Syndrome, named after German bacteriologist Hans Conrad Julius Reiter (1881–1969), now called reactive arthritis; and Haller­ vorden-Spatz Syndrome which once carried the surnames of the German neu­ roscientists Julius Hallervorden (1882–1965) and Hugo Spatz (1888–1969), and is now referred to panthothenate kinase-associated neurodegeneration or (PKAN). For more, see Kondziella 2009; Voges and Kupsch; Woywodt and Mattheson 2006. Sometimes called Lynch Syndrome, the disorder was first identified in 1895 by Dr Aldrin Warthin. Through genealogical charts, Warthin noted the disease appeared to run in families. For this reason, it eventually came to be called the Cancer Family Syndrome. Nearly a century after Warthin’s observations, medical advances made it possible to isolate the gene responsible for the disease. The researcher who is credited with much of this pioneering work was Dr Henry T. Lynch. In honor of his work, the disorder carries his name today. However, Dr Lynch himself preferred to use the descriptive name Hereditary Non-polyposis Colorectal Cancer or HNPCC (Boland and Lynch 2013). “According to some published studies, relevant clinically unsuspected findings that could have changed patient prognosis if medical controlled or treated are found in 20% to 40% of autopsies” (González-Franco et al. 2012: 20). In a sys­ tematic review of autopsy reports filed in the US, it was extrapolated that “as many as 40,500 adult patients in an ICU in the USA may die with an ICU mis­ diagnosis” (Winters et al. 2012). It is interesting to note that the ICD has its own classifications for the difficult to classify. For example, the ICD-9 included the category SSIDC for “Signs, Symp­ toms, and Ill-Defined Conditions”. In the ICD-10, this classification was exten­ ded and renamed SSACLFNOC for “Symptoms, Signs, Abnormal Clinical and Laboratory Findings Not Otherwise Classified”. A “sequelae” is a medical term to describe the negative after-effects of a disease, infection, or injury. It is related to the English words, “sequence” and “sequel”. As much research has shown, female patients are especially susceptible to the callous disregard of their symptoms. In 1993, for example, more than two

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decades before the COVID pandemic, an investigation of intensive care patients revealed that 43% had been told there was nothing medically wrong with them other than “just nerves” and that they should “find a lover”, “get married”, “have a baby”, or “get a life” (Dusenbery 2018a:184). 12 A concrete example of this institutionalized bias can be seen in the fact that it was not until 1993 that US federal law [Public Health Service Act sec. 492B, 42 U.S.C. sec. 289a-2] required that women and ethno-racial minorities to be inclu­ ded in all federally funded research conducted by the NIH. Before that, data obtained on the signs, symptoms, and treatments of diseases was based primarily on White male study participants. 13 https://www.undiagnosed.org.uk/join/

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11 The Name of the Rose (and Everything Else) How Codes and Practices in Naming Biological Species Reflect Cultural Identities Stephen B. Heard Introduction Biologists have a naming problem. Our field seeks to document and understand the workings of our natural world. But it’s just not possible to talk or write about the world around us without having names to apply to the living species that populate that world: animals, plants, fungi, algae, and more. Descriptive phrases like “the yellow butterfly with the long antennae” might work well enough if there were only a few hundred species on Earth; but there aren’t. Instead, biologists are trying to make sense of a planet teeming with, literally, millions of dis­ tinct species, each with its own morphology, behavior, physiology, and ecological roles. Among those, hundreds (at least) are “yellow butterflies with long antennae”, and the problem would be far worse for little brown mushrooms or long silvery fish. We need unambiguous names for species, because if we can’t label those species, we can’t study them or communicate what we know about them. Just how many species need names? Nobody knows. Naming roses (for example) isn’t too hard: the genus Rosa includes only about 190 species (Bruneau et al. 2007). But roses are a tiny sliver of the riotous diversity of life on Earth. About 1.5 million species have been formally described and named by scientists so far. Estimates of the total number of living species, though, range from three million to 100 million (Costello et al. 2013) and occasionally much higher. Locey et al. (2016), for example, estimate that the number may be as high as one trillion! If we were to include extinct species, like Tyrannosaurus rex and all the others that have lived through the roughly four-billion-year history of life on Earth, the number would surely be at least two orders of magnitude higher. For comparison, the total number of words in the English language might modestly exceed one million—and that’s if we use rather liberal criteria for whether a word is an English one, and whether two words are different (Michel et al. 2011). Naming Earth’s species is a gargantuan task. DOI: 10.4324/9781003431510-11

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In the biological sciences, taxonomists concerned with describing the Earth’s species and decoding their evolutionary relationships have con­ structed a system for scientific naming. I will introduce that system and its quasi-legal rules, or nomenclatural “Codes”. I will explain why scientists comply with these rules despite their lack of legal force; and I will point out some of their interesting consequences for species naming in a socio-political context. I will contrast this system of scientific nomenclature with the familiar everyday names that non-scientists use for species. Although these “common names” have no governing rules at all, they are still sometimes subject to attempts at regulation.

What Makes a Name Useful? One of the primary goals of the scientific system of naming is to produce names that are maximally useful. But what does that mean, and what does the system that achieves that look like? A “useful” name for a species must have three important properties. It must be precise: the name is applied to one species and only one. It must be unambiguous: scientists must agree on which name applies to a particular species. It must be global: everyone (or at least every biologist), in every country and of every language background, must be able to access and use it. When names don’t meet these standards, trouble ensues. For example, two ecologists studying lizards at distant field sites can’t interpret differences between their results unless they can know whether they’re studying the same or different lizards. Medical doctors dealing with cases of snakebite or mushroom poisoning can’t be sure of the most appropriate treatments unless they can identify precisely which snake or mushroom a patient encountered. And to avoid the legal risks associated with killing, injuring, or disrupting the habitat of endangered species, property developers need to know unam­ biguously whether the plants (or other organisms) growing in front of their bulldozers match the species listed for legal protection. While scientific names achieve, or at least approach, the three properties of useful names listed above, common names often do not. Every human language has common names for biological species— “rose”, for one—but they generally lack the three properties that would make them suitable for scientific or legal use. Consider, for example, the “cougar”—or “puma”, or “painter”, or “catamount”, or “mountain lion”, or any of another 35 English names for the same animal. Or consider the “badger”—but since European and North American badgers are quite different animals, you may well wonder which one. Now multiply this confusion by the world’s 7,151 living languages (Eberhard et al. n.d.) and take into account the fact that in any of these languages, a given species may have one common name, many common names, or no common name at all. In many languages, species that are more useful or dangerous (Farooq et al. 2021) to humans have more precise common names. Nonetheless, there

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can be real-world consequences to the imprecision, ambiguity, and locality of common names. Among snakes, for example, a “brown snake” in North America is a harmless member of the genus Storeria, while a “brown snake” in Australasia is a highly venomous member of the genus Pseudonaja. To confuse matters further, there’s the Australian “king brown snake” or Pseudechis aus­ tralis, which is also venomous; but treatment of Psudeonaja and Pseudechis bites require completely different monovalent antivenoms. (Fortunately, a polyvalent antivenom is now available that treats bites from either snake; Toxinology 2018). Similarly, in tropical Asia, “kraits” are venomous snakes in the genus Bungarus, while “sea kraits” are venomous snakes in the genus Lati­ cauda. Bites from these two snake genera require different antivenoms (Tox­ inology 2018). At least one case is known from Malaysia where a patient reported a bite from “a krait near a beach” and was treated, incorrectly, with the Bungarus antivenom (R. Martin, pers. comm.; although the mistake was later discovered, the patient died). Luckily, cases like this appear to be rather uncommon because experts understand the dangers of relying on common names in medical, scientific, or legal contexts. It is for this reason that the US Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.) requires that all species listed as endangered must be designated by their scientific names. Similarly, both the European Union’s Habitat Directive (Council Directive 92/43/EEC) and the UK Wildlife and Countryside Act (1981) list protected species by scientific name (Annex II and Schedules 5 and 6 respectively).

Scientific Names for Species Our current system of scientific naming dates to the mid-18th century, when its basics were codified by the Swedish botanist Carl Linnaeus (Winston 2018). Before Linnaeus, a species’ scientific name was poorly defined. Some scientists used single-word names, especially for familiar organisms like “crocus” (now Crocus sativus, the flower from which we harvest saffron). Others, such as the 17th-century mathematician and natural historian Joachim Jung, used two-word names (for example, Ficus indica for the banyan tree, a name retained by Linnaeus in his own works). But most often, a “name” was a descriptive phrase (in Latin) that distinguished the named species from all others. For example, the English whiting, a fish, was “Gadus, dorso tripter­ ygio, ore cirrato, longitudine ad latitudinem tripla, pinna ani prima ossicu­ lorum triginta” which roughly translates as “the cod-like fish with three little wing-like forms on its back, a serrated mouth, three times longer than it is broad, and with the first anal fin with thirty supporting little bones”. This was just a little bit unwieldy. Actually, this system was worse than unwieldy; it was also unstable, because as new species were discovered and described, older species needed to be renamed to ensure that they could be onomastically distinguished from all similar species. Linnaeus realized that it was possible to separate description from labelling, such that names played only the latter

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role and worked as pointers to descriptions recorded elsewhere. In a series of works (notably Linnaeus 1735, 1736, 1737), he formalized a system in which each species bore a binomial: a two-part scientific name that consisted of a “genus name” and a “species epithet”. Our own species, for example, is Homo sapiens. Here, Homo is the name of our genus, which includes our­ selves along with some of our extinct relatives (Homo neanderthalensis, Homo naledi, and so on); and sapiens is the species epithet that labels us as distinct from all other members of Homo. As a binomial, Homo sapiens meets the three criteria for useful names. It is precise because the name Homo sapiens applies only to our own species. It is unambiguous because a set of rules (of which more soon) tells us how to decide what species Homo sapiens describes and how to settle any disagreements we might have about that. And it’s global because the name, and a description of the species to which it applies, is published in literature that’s accessible worldwide. Linnaeus’s system caught on rapidly, perhaps because it was such an obvious advance over the chaos that preceded it (Winston 2018). We use the same basic system today, although we’ve built, elaborated, and refined a set of rules that governs binomial naming. These rules developed through the 19th century, beginning with a set for animals developed primarily by the English ornithologist Hugh Edwin Strickland and adopted at the 1842 meeting of the British Association for the Advancement of Science (Strick­ land 1843). The first set of rules for plants was published in 1867 by the Swiss botanist Alphonse Pyrame de Candolle following its adoption at the International Botanical Congress in Paris (de Candolle 1867). Neither set of rules, however, had international force (Rookmaaker 2011), and this was an obvious problem. In 1889, the First International Congress of Zoology agreed to develop a truly global set of rules for animal naming. Six years later, in 1895, an International Commission on Zoological Nomenclature was established; and, in 1905, the Commission published the first edition of the International Code of Zoological Nomenclature. An International Code of Botanical Nomenclature followed in 1906. Since their introduction, both sets of codes have been revised several times. Each Code is administered by a standing committee (or set of committees) elected by scientists attending an International Congress (International Commission on Zoological Nomenclature 1999, Article 84; Turland et al. 2018, Division III, Principle 7). These committees are international in scope, but perhaps unsurprisingly their membership reflects the global distribution of research funding. The Zoological Commission, for example, as of 2022 had 27 elected members representing 20 countries; but 21 commissioners were from North America, Europe, Australia, or New Zealand (four more were from Asia and two from South America, with Africa unrepresented; International Commission on Zoological Nomenclature 2022). While all life on Earth has a single evolutionary origin, there are sub­ stantial historical and cultural disconnects between the sets of scientists who study different groups of organisms. It was a consequence of these

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disconnects that the formal Codes for animals and plants developed in parallel, but separately. In fact, today, there are not just two nomencla­ tural Codes but five: one each for animals (International Commission on Zoological Nomenclature 1999); wild plants, algae, and fungi (Turland et al. 2018); cultivated plants (Brickell et al. 2016); bacteria (Parker et al. 2019); and viruses (International Committee on Taxonomy of Viruses 2021). Fortunately, these Codes are quite similar in their major features, so practices for different groups of organisms diverge mostly in their details. The plant and animal Codes are especially similar, and share the following key points: 1) A newly discovered species acquires a scientific name when the dis­ covering scientist(s) publishes their choice of name in the scientific literature. “Scientific literature” is defined rather broadly and can include not just sci­ entific journals or technical monographs but almost any kind of publication that’s reasonably widely available. This means that amateurs, not just pro­ fessional scientists, can and have named species: for instance, the amateur ichthyologist Erhard Roloff named the killifish Aphyosemion roloffi in an aquarium hobbyist’s magazine (Roloff 1936; Heard 2020: Ch. 10). The pub­ lication conferring a new name must include a description that “diagnoses” the species by separating it from other, similar, known species, and must designate a reference specimen or “type” that pins the name to a physical instance of the species. As an illustration of this process, consider Santamaria et al. (2020), who described and named a newly discovered species of fungus, Troglomyces twitteri, that parasitizes millipedes. This fungus was first noticed in a photograph of a millipede posted to the social-media net­ work Twitter, but the authors then screened museum specimens of related millipedes, discovered physical specimens, and described and named the species based on those specimens. 2) If there is confusion about which of two (or more) names to apply to a particular species, the name that is deemed “correct” is (almost always) the one that was published first. This practice is called the “Principle of Prior­ ity”. Confusion over which name is correct isn’t uncommon. It can happen because a taxonomist names a species in the belief it represents a new dis­ covery, without realizing that someone else had already done so. This kind of mistake was especially common before electronic indexing of literature. In the extreme, a single species may end up being named dozens or even hundreds of times—for the European “swan mussel” Anodonta cygneus, over 500 times! Although there’s no way to settle whether “cougar” or “puma” is the “correct” common name for the large wild cat, Anodonta cygneus is the correct name for the swan mussel because it was the first name to be published for it (by none other than Linnaeus himself, in 1758). 3.) Confusion can also occur when scientists disagree or change their minds about the limits of the set of individuals that make up one species. For example, Rydberg (1917) described and named several new rose

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“species”, including Rosa brachycarpa and Rosa greenei, that he felt differed morphologically from Rosa californica. More modern authorities, however, consider Rydberg’s “new species” to be just slightly different forms of R. californica (Ertter 1993). Because R. californica is the oldest name, it is considered the “correct name” for a rose fitting any of Rydberg’s descrip­ tions. Rydberg’s other names are now considered “junior synonyms”, and aren’t used any longer. 4) A newly described species can be assigned to an existing genus, or a new genus can be named to hold it. For instance, Homo naledi was added to the genus Homo alongside H. sapiens (Berger et al. 2015); this (fossil) human relative is distinct enough from modern humans that it almost cer­ tainly represented a different species but is still easily recognized as our very close relative. The fossils that were named Australopithecus africanus (Dart 1925), in contrast, were different enough from all known Homo specimens that Raymond Dart named the new genus Australopithecus to hold them. Judgements about the degree of difference that merits a new genus name are often controversial. 5) Although new species (and genus) names can be coined with a remark­ able degree of freedom, there are a few formation rules they have to meet. For example, they must be spelled with the standard Roman alphabet and without special characters like apostrophes or accented letters (hyphens are sometimes allowed). The privileging of one script over alternatives, such as Hebrew letters or Chinese logograms, seems to be broadly accepted as a matter of practicality. A new species name can’t duplicate an existing name in the same genus, and a new genus name can’t duplicate an existing one under the same Code. So, we can have only one Morus among animals: it’s the gannet, a large white seabird. But among plants, which are governed by a different Code, we also have a Morus, the mulberry. Finally, although a name’s etymological roots needn’t be Latin, it’s treated grammatically and morphologically as if it were. Beyond that, almost anything goes; even an “arbitrary combination of letters” is permitted as long as it’s consistent with the other rules. There are no provisions for rejecting names that might be offensive, for example. Although the Codes are written with that mix of jargon and cumbersome precision that characterizes legal statutes, they have no actual legal force. There are committees set up under each Code to deal with difficult inter­ pretation of details, appeals for exceptions, and so on. However, they lack the mechanisms that we typically associate with the judicial systems that institute and regulate naming statutes and policies in the legal world. And yet, the rules and procedures set out in the Codes are near-universally respected by taxonomists and other biologists. This compliance is partly because peer review and journal editorial policies erect effective barriers against misuse, and partly because there’s a strong consensus that only the Codes stand between biology and nomenclatural chaos.

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Naming as a Creative Act The naming of new species is one of the most creative acts in all of science. Aside from the few Code constraints described above, taxonomists are free to coin species names in just about any way they please. This creative freedom is perhaps the most significant change that came with the 18th-century adoption of the Linnaean system. Since then, naming practices can reflect the personal­ ities of the naming scientists and the cultures in which they are embedded (Isaak 2019; Heard 2020). Despite the resulting onomastic diversity, there are some patterns in the coining of new species names. The distribution of etymologies varies across evolutionary lineages and through space and time (Figuerido and Smith 2010; Poulin et al. 2022; Mammola et al. 2023; Mlynarek et al. 2022), but as a rough rule most names are formed in one of four ways. First, a name can be based on a species’ appearance. An example here is the “red maple”, Acer rubrum, whose foliage turns spectacularly crimson in autumn. Such descriptive namings are something of a vestige of the pre-Linnaean practice but remain very common (Table 11.1). Second, a name can be based on the geographical area where a species occurs (e.g., Pontibacter pamirensis, a bacterium from saline soils of the Pamir Plateau in northwestern China). Table 11.1 Summary of etymological practices in species naming Aloe

Parasitic worms

Spiders1

Herbivor­ ous insects & mites

Summary2

Etymology

% (Number)

% (Number)

% (Number)

% (Number)

% (Number)

species anatomy/ appearance species geographical area species habitat/host a person Subtotals Other Total Source

38.6 (353)

20.8 (601)

40.5 (19190)

32.7 (895)

39.1 (21039)

20.0 (179)

19.0 (550)

27.2 (12868)

11.0 (300)

(25.7) 13821

4.0 (37)

21.3 (616)

5.8 (2750)

26.7 (731)

(7.8) 4210

30.4 (278) 92.6 (847) 7.4 (68) 100 (915) Figuerido & Smith 2010

34.7 (1004) 95.8 (2771) 4.2 (120) 100 (2891) Poulin et al. 2022

19.4 (9157) 92.9 (43965) 7.1 (3360) 100 (47325) Mammola et al. 2023

15.4 (422) 85.7 (2348) 14.3 (391) 100 (2739) Mlynarek et al. 2022

20.2 (10861) 92.7 (49931) 7.3 (3939) 100 (53870)

1

Numbers of spider species are approximate, calculated from Figure 1 in Mammola et al. 2023. Weighted averages; or, equivalently, proportions of the total 53,870 names. N.B.: These averages are heavily influenced by the spider dataset, which is by far the largest.

2

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Third, a name can be based on a species’ habitat (the biological or physical conditions under which it lives), as for Aster alpinus, a daisy-like flower adapted to alpine conditions and native to the Alps, Pyrenees, and other European mountain ranges. An interesting variation of this naming pattern occurs for parasites and symbionts. These organisms’ habitats are the hosts they attack (for parasites) or with which they live (for symbionts); and their scientific names are often based on the names of their hosts. For example, the fly Eurosta solidaginis induces abnormal growths called “stem galls” on several species of goldenrods, in the genus Solidago. Fourth, a species’ name can be based on the name of a person, as for the spider Thunberga greta, named for the Swedish climate activist Greta Thunberg (Jäger 2020). Such an eponymous name can honor a tax­ onomist’s hero, a colleague, a beloved partner, parent, or child; or (occa­ sionally) it can insult a rival or an enemy (Heard 2020). These four patterns, collectively, account for about 90% of all species names, accord­ ing to four studies that have compiled etymologies for large sets of species names: 1.) Figuerido and Smith 2010, which collected data on 915 species of tropical succulent plants in the genus Aloe; 2.) Poulin et al. 2022, which compiled data on 2,891 parasitic worms; 3.) Mammola et al. 2023, which gathered etymological information on the naming of 47,325 spiders; and Mlynarek et al. 2022, which investigated the species names given to 2,739 different herbivorous insects and mites. The etymological breakdowns found in those studies are summarized in Table 11.1. Curiously, Table 11.1 also reveals some among-group differences in the kinds of etymologies that predominate. Sometimes these differences are biological: namings based on habitat or host are far more common among parasitic worms and plant-feeding insects than among other species. This strong onomastic pattern reflects a common biological pattern in which these species evolve as host specialists that feed on a single species of victim. Other naming differences are more likely cultural in origin. Epon­ ymous names, for example, are more common among species of Aloe and parasitic worms than they are among spiders or plant-feeding insects. This dissimilarity needn’t have any explanation beyond contrasting cultural norms in the different communities of taxonomists who named the species in these groups. Although names based on appearance, geographical area, habitat/host, and eponymy are by far the most common, they are not the only ones used by scientists who discover and name a new species. The remainder are quite the onomastic assortment. There are puns and other jokes, such as the tiny frog named Mini mum and the wasp named Heerz lukenatcha (“Here’s looking at you!”, an expression made famous by Humphrey Bogart in the 1942 film Casablanca). There are even names with no etymology at all. Take the spider Otiothops casobus: according to its namer, “casobus” is simply an arbitrary combination of letters (Chickering 1967).

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Eponymous Names, Priority, and the Best and Worst of People Eponymous species names are especially interesting because they’re names that reference other names — and in particular, human names. This pulls them firmly into a sociocultural space where a name can show the best a human can be — or the worst. That’s true both of the namers and the epo­ nyms. Consider, for example, Leptomorphus mandelai, a fly named by Chris Borkent and Terry Wheeler for the anti-apartheid and human-rights hero Nelson Mandela (Borkent and Wheeler 2012). This commemorative name stands in sharp contrast with Anopthalmus hitleri, the blind cave beetle named by Oskar Scheibel (1937) to honor … well, it’s exactly who you think. The “Hitler beetle”, in particular, is something of a test case for how awful eponymous naming can sometimes be. Scheibel was an Austrian amateur entomologist who was sent specimens from a Slovenian cave and recognized them as a species previously unknown to science. His decision to name the species after Adolf Hitler has been much discussed, with some speculating that Scheibel was merely pretending admiration for the Führer. Unfortunately, it seems clear from Scheibel’s paper that his admiration was genuine (Heard 2020: 65). Today, the continued existence of the ignominiously named beetle is, sadly and bizarrely, threatened by the collection of specimens for sale to Neo-Nazis (Berenbaum 2010). Scheibel’s Nazi sympathies are in the past, but the name Anopthalmus hitleri and its consequences are still with us. Can we change the name? Should we? Under the current version of the zoological Code, at least, we can’t change Anopthalmus hitleri’s name. Scheibel was the first to name the beetle, and he did so in compliance with the rules of the Code. So, under the Principle of Priority, A. hitleri is the valid and correct name for the species. Even today, a new species (in another genus, of course) could be named hitleri. The Code does recommend avoiding names that might offend people: “Authors should exercise reasonable care and consideration in forming new names to ensure that […] as far as possible, they are appropriate, […] memorable, and do not cause offence” (International Commission on Zoological Nomenclature 1999: Recommendation 25C). However, this is only a recommendation, not a rule. The Botanical Code is even more explicit, stating very clearly that, for plants, “a legitimate name must not be rejected merely because it, or its epithet, is inappropriate or disagreeable (Turland et al. 2018: Article 51.1). The nomenclatural Codes do have processes for “suppressing” a name that would otherwise be valid. For animals, a body called the International Com­ mission on Zoological Nomenclature considers requests to apply a name to a species that is different than the one that would normally apply under the rules. However, the conditions under which the Commission can cast aside a valid name are clearly defined and quite narrow: “The Commission has the plenary power […] to modify the application of provisions of the Code to a particular case, if such application would in its judgment disturb stability or universality or cause confusion” (International Commission on Zoological Nomenclature

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1999: Article 81.1). Changing the name A. hitleri would not avoid confusion, and might arguably cause it. It would take, therefore, a revision of the Code itself to allow names to be changed because they are unsavory. What prospects are there for revising the Codes in this way? If it were only A. hitleri, this question might be simply a curiosity, but there are more examples of unsavory eponymous names than one might imagine (Heard 2020: Chapters 8 and 11; Rutter et al. n.d.). For the Zoological Code, dis­ cussions of possible revisions are underway (International Commission on Zoological Nomenclature n.d.). However, as I write, those discussions do not yet mention the possibility of changing potentially offensive eponymous names—despite at least one call for such changes (Tracy 2022, for fishes). There are active proposals to revise the Botanical Code in this way, though, and they have led to fierce debate (e.g., Hammer and Thiele 2021; Mosyakin 2022; Thiele et al. 2022, and citations therein). Proponents have argued that such changes can “address … historical wrongs, in a measured way and in the service of the sensible and defensible governance of biological nomenclature” (Thiele et al. 2022), while others have suggested that removing references to even one “controversial person from botanical nomenclature could be a very dangerous precedent for the future of the whole [nomenclatural] system” (Mosyakin 2022). It is far from clear whether these proposals will succeed. The case for changing names like A. hitleri is obvious. The case against is (mostly) two-pronged. First, the Principle of Priority gives scientific nomen­ clature objective decidability and temporal stability: we can all agree on which of two papers was published first, and hence on the correct name. Of course, it is always possible that an earlier published name for a species might be discovered, meaning a widely used name would have to be dis­ carded and replaced with the earlier one. But when this happens, we are only recognizing a name that was always correct, not replacing a name that was previously correct but no longer is. The Principle of Priority, therefore, goes a long way towards ensuring that scientific names have two of the properties of useful names: that they be unambiguous and global. A whole­ sale effort to purge the rolls of objectionable eponymous names would reduce the stability of scientific naming and, thus, automatically reduce the extent to which species names possess those properties. A second argument against altering offensive names is that there is a slippery slope (Mosyakin 2022): if we change the name A. hitleri, how do we decide where to stop? What about the moth Hellinsia pizzaroi, the gazelle Gazella cuvieri, or the lizard Salvator merianae? Francisco Pizarro (1478–1541) was the ruthless conquistador who subjugated the Incan empire. Georges Cuvier (1769–1832) was a giant of anatomy and paleontology but published bigoted descriptions of human races. And Maria Sibylla Merian (1647–1717) made astonishing early contributions to entomology but owned (or at least benefited from the labor of) slaves. For every obvious case like A. hitleri, there’s a slightly less obvious one, and another slightly less obvious than that; and given that no human is without sin, the slope extends all the way to Leptomorphus

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mandelai. The point here is not that eponymous names generally refer to horrible people; they don’t. Rather, they refer to people of all sorts, by the thousands, and it will be difficult to design and operate a system that finds a universally agreed stopping point halfway down the slope. Given this diffi­ culty, and the intensity of disagreement that proposals for change generate (Mosyakin 2022; Thiele et al. 2022). It’s not obvious whether future revisions of the Codes can, should, or will deal with the A. hitleri problem. There’s another problem with our existing set of eponymous species names: the Principle of Priority gives them a sort of historical inertia that makes it difficult to correct the past underrepresentation of many human groups. Prac­ tices for scientific naming are part of Western science, which has been domi­ nated by male European and North American scientists and has long excluded women and people of color. As a result, eponymous names in most taxa are dominated by those referring to white men (e.g., Figueriedo and Smith 2010; Tracy 2022). This is beginning to change, as new namings increasingly recog­ nize women, scholars and naturalists from the Global South, and other mem­ bers of under-recognized groups. For example, the owl Otus bikegila is named for Ceciliano “Bikegila” do Bom Jesus, an Indigenous guide and naturalist of Príncipe Island who reported and helped capture specimens of the species (Melo et al. 2022), while the dragonfly Platygomphus benritarum is named for two environmentally active women in Assam, India (Monisha “Ben” Behal and Rita Banerji; Joshi 2022). However, as a consequence of the Principle of Prior­ ity, new names like these can only supplement, not replace, the existing body of andro- and ethnocentric names. The resulting historical inertia is strongest in well-studied groups such as birds, where most species have long since been named. There’s limited potential, as a result, for expanding the diversity of people represented in eponymous bird names: the occasional new discovery is only a drop in the feathered bucket. The chances for change are better for other groups of organisms, such as insects, where only a small fraction of Earth’s biodiversity has been named so far. Such groups offer us an opportunity to introduce eponymous names that tell more diverse stories, about a more diverse set of people. Among non-eponymous namings, the issues and trends are similar. While there are no restrictions on the languages that supply the etymological roots of scientific names, early namings were overwhelmingly based on Latin or Greek (Galbreath 2021). This linguistic preference reflected the dominance of Western scientists and the colonial attitudes they often held towards the biodiversity they studied. To some ears today, such exogenous scientific names embody a dissonance between the languages native to the areas where the organisms live, and the foreign languages used to (scientifically) name them. In contrast, over the last couple of decades it has become common to coin scientific names with etymological roots in local and Indigenous lan­ guages. For example, the name of our relative Homo naledi uses Indigenous terminology that refers to its origin: the word naledi means “star” in the Sotho language spoken near the Rising Star Cave in South Africa where the

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fossils were discovered (Berger et al. 2015). The species epithet of the sala­ mander Desmognathus adatsihi, found in the Great Smoky Mountains of the United States, has an etymology from Tsalagi (Cherokee), an Indigenous language of the region. The term adatsihi, meaning “mother of all”, is a reference to the matrilineal inheritance of its distinctive mitochondrial genome (Pyron and Beamer 2022). The New Zealand broadleaf tree Beilschmiedia tawa has a simpler story: tawa is the name of the species in te reo Ma-ori. Beilschmiedia tawa is something of an exception here: it was named (as Laurus tawa) in the early-19th century by the English explorer Allan Cunningham (Cunningham 1838). The idea of using Indigenous lex­ emes in forming scientific names is thus not new; it’s simply received much more attention in recent years. Again, in groups with many yet-undescribed species, future naming can, and probably will, incorporate more linguistic diversity as well as greater eponymic variety. In other groups there’s more limited potential for new names; but in hopes of overcoming this obstacle, some researchers (e.g., Gillman and Wright 2020; Knapp et al. 2020) have proposed that the nomenclatural Codes be modified to allow existing scien­ tific names to be replaced with “new” names based on longstanding Indi­ genous designations. The adoption of such proposals would not be without complication (Knapp et al. 2020; McGlone et al. 2022). One major challenge would involve trying to select one species name out of the many possible alternatives used across the homelands of multiple Indigenous groups. The social, scientific, and political uproar that such decision-making could pro­ voke make it unclear whether such proposals will succeed.

Common Names: Trying to Regulate the Unregulated While species’ scientific names are governed by the quasilegal Codes of nomenclature, common names such as “cougar”, “daisy”, or “monarch but­ terfly” have no such constraints. Like all English words, they are simply con­ ventions between language users, with most people agreeing, more or less, on what is meant by a given word. For many species, these onomastic conventions are quite strict: “monarch butterfly” is nearly as unambiguous as the species’ scientific name Danaus plexippus. For others, the conventions are much looser, with many different names being applicable to the same species (“cougar”) or a single name being used for more than one species (“badger”). Common names can, and do, change in application both regionally and over time. While the imprecision of common names can lead to confusion, scientific names are always available for use when that confusion would have serious consequences. Nevertheless, a number of scientific societies maintain lists of “official” common names for the organisms with which they are concerned, in an attempt to give names in common use some of the same clarity pos­ sessed by scientific names. For example, the American Ornithological Society (AOS) maintains “official” common names for all North American birds as part of its Check-list of North American Birds (Chesser et al. 2022);

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and the Entomological Societies of America (ESA) and Canada (ESC) each maintain lists of “official” common names for insects (Entomological Society of America n.d.; Entomological Society of Canada n.d.). The concept of an “official common name” may seem oxymoronic (and, indeed, it is). However, the common names lists do have some influence. To begin with, each society enforces use of the “official” common names in its own publications, including but not limited to scientific papers published in its jour­ nals. Other organizations may follow their leads. Among birding organizations, for example, the American Birding Association follows the AOS common-name list. The same is true of the online birding database, eBird (Cornell Lab of Ornithology n.d.). This means that documents such as regional checklists and field guides—which are heavily used by birders—hew to the “official” common names. In principle, then, the AOS has no jurisdictional authority over language users, and no legal power to set or enforce their usage of bird common names. In practice, though, such organizations have considerable influence. An interesting test of these institutions’ ability to sway linguistic usage via their “official” common name lists lies in their efforts to change common names that have been in widespread use. Such attempts have been made recently, for instance, for both birds and insects (among other cases; Driver and Bond 2021). In 2000, the American Ornithologists’ Union (AOU)—the predecessor of the AOS—changed the official common name for the sea duck Clangula hyemalis from “oldsquaw”* to “long-tailed duck”. The goal was to remove the racist slur (American Ornithologists’ Union 2000). In 2020, the AOS changed the official common name of Rhynchophanes mccownii from “McCown’s long­ spur”* to “thick-billed longspur” (American Ornithological Society 2020). The scientific name, which was conferred in 1851, commemorates John McCown, an amateur ornithologist who later served in the Confederate Army. Finally, in 2021, the Entomological Society of America withdrew “gypsy moth”* as its official common name for Lymantria dispar to avoid the racist epithet. A year later, in 2022, the ESA, along with the Entomological Society of Canada, set “spongy moth” as the replacement common name (Entomological Society of America 2022; Entomological Society of Canada 2022). Could these attempts be successful? Could they change the usage of the common names beyond the direct control the organizations exert over their own publications? Common names are both easier and harder to change than scientific ones. They’re easier to change because there are no regula­ tions preventing the adoption of a new name; but they’re also harder, because there are no regulations requiring the abandonment of the old one. Heard (2022a) used text-mining approaches to examine evidence for the influence of the three “official” common-name changes on linguistic usage in books or online (Figure 11.1). In each case, usage for each common name was compared with usage of the species’ scientific name. This step was taken to normalize for variation in the degree of interest in the species, and also for the general growth through time in the volume of published information.

Usage frequency

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A

Oldsquaw Long-tailed duck

6

4

2

0 1980

1990

2000

2010

2020

12

Usage frequency

199

B

McCown's longspur Thick-billed longspur 9

6

3

0 2000

2005

2010

2015

2020

Usage frequency

5

C

Gypsy moth Spongy moth

4

3

2

1

0 2005

2010

2015

2020

Figures 11.1A, B, and C: Time trends in usage frequency for “long-tailed duck”, “thick-billed longspur”, and “spongy moth” compared with “oldsquaw”*, “McCown’s longspur”*, and “gypsy moth”*, respectively.

The vertical dotted lines indicate the time that the name changes were announced; for “spongy moth”, the two vertical lines mark the removal of the old name and the subsequent introduction of the new one. In Figure 11.1A, the data are from Google Books (n-gram search, single search each time point). In Figures 11.1B and 11.1C, the data are from regular Google web searches with an average of three replicate searches for each time point.

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The usage frequencies in all three Figures are expressed relative to usage for the scientific name of each species. Further details of methodology are in Heard (2022a, 2022b). Note that some data points in panel B far exceed the vertical axis limits, and the plot has been cropped to show recent trends more clearly. The age of the name change for “long-tailed duck” was great enough to allow analysis of published books via Google n-grams search, which mines a Google Books corpus through 2019 (Michel et al. 2011; Heard 2022b). Distinct trends in the use of the older and newer names (Figure 11.1A) appear super­ ficially consistent with the “official” change in common name: usage of the older, offensive name declined sharply, and usage of its neutral replacement “long-tailed duck” increased around the year 2000. However, books don’t reflect linguistic usage at the time when they were published, but when they were written or copyedited. For books with publication dates in 2000, these steps would generally have been completed no later than mid-1999. While news of a likely name change had been circulating as early as November 1999 (Zamichow 1999), the onomastic policy was not officially published until July 2000 (American Ornithologists’ Union 2000). Heard (2022a) argued, therefore, that the decline in usage of “oldsquaw”* in the year 2000 suggests a change in usage that preceded the AOU’s decision. Rather than initiating terminological change, it is more likely that the AOU’s name change recognized and responded to an ongoing shift to “long-tailed duck”—a name that had long been used in Europe. The attempts to establish the new names “thick-billed longspur” and “spongy moth” are too recent to have been captured in the Google Books corpus. Therefore, Heard (2022a) used regular Google web searches (Heard 2022b) to estimate patterns in usage of these names and their predecessors over time. For “thick-billed longspur”, the data were quite noisy (Figure 1B), but the pattern was reminiscent of that found for “long-tailed duck”: a decline in usage of the old name, and growth in the new one, around the time of the name change. However, close inspection of the data suggests that at least some of the terminological shift predated the official announcement. Usage of “McCown’s longspur”* has remained substantial, suggesting either ignorance of, or resistance to, the name change. For “spongy moth”—the most recent name change—the pattern was different (Figure 1C). There has been a marked increase in usage of the replacement name, but there’s little evidence of a decline in usage for the older name. Once again, usage of “spongy moth” increased before its official announcement, which Heard (2022a) suggested could reflect public discussion of proposed new names. It will take more time before we can know whether the older, offensive name will eventually be abandoned. Overall, then, it’s not clear how effective top-down efforts to change common names can be, but none of the three cases show the pattern we’d expect if the official name-change announcements were the primary drivers of public usage. More name-change attempts will surely be made, however.

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For example, Driver and Bond (2021) appeal for broad openness to revising common names that are offensive or even just biologically inaccurate. At the same time, the grassroots group “Bird Names for Birds” (Rutter et al. n.d.) is advocating for the abandonment of every eponymous common name for a bird. With at least 155 species with such names in North America alone, such a sweeping change would be a herculean, and fascinating, linguistic experiment.

The Next Revolution? Writing (and talking) about Earth’s astonishing biodiversity is a tremendous challenge, not only because of the complexity of our planet’s ecosystem, but also its enormity. There are millions of species to be discovered, dis­ tinguished, and labelled. Common and scientific names of species provide complementary systems for tackling this challenge. Both sets of nomenclature reflect the cultural identities and milieus of the people who coin and use the names, but they do so in very different ways because the systems have devel­ oped to have different properties. Common names are the names everyday people use to refer to species that are important to them within their everyday lives. Attempts by academic societies to regulate, or at least systematize, these names appear to be of mixed effectiveness. Scientific names, in contrast, are tightly and effectively regulated by quasilegal nomenclatural Codes. Carl Linnaeus’s 18th-century invention of our modern system of scientific naming was a revolution. It was provoked by the unwieldy nature of pre­ vious naming systems and the dawning realization that the older systems just couldn’t handle all the species that needed naming. Is it possible that in the 21st century, another revolution is approaching, or even underway? If so, it would be very different than the one before. While the previous revolution was motivated by scientific necessity, today’s would be driven by the demand for greater societal equity. There is a growing realization that past namings have reflected the very limited set of cultural identities that were able to participate in, or that were recognized by, Western science. This realization has been coupled with calls to modernize practices and policies for naming the world’s species. Recent namings (both common and scien­ tific) have begun to broaden their range of human and cultural referents; the only question is how far and how fast this trend will proceed. There is much less consensus over the necessity or propriety of changing already established scientific names. Even amongst supporters of increased diversity in names there’s still considerable uncertainty over whether the Codes should be amended to allow the revision of older scientific names. Some would wel­ come a fundamental revision of a system they believe prevents change to nomenclature that is no longer in line with modern-day sensibilities; but others worry that major changes would undermine the very properties that make scientific names so invaluable. What the future will bring is anyone’s guess. Revolutions are notoriously difficult to see coming—and even, or maybe especially, to recognize while they’re already happening.

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Acknowledgements I thank I. M. Nick for the invitation to write this chapter, several Twitter followers for suggestions about snakes, and Ben Dow, Stefano Mammola, Julia Mlynarek, and Iman Nick for perceptive comments on drafts.

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Eberhard, David M., G. F. Simons, and Charles D. Fennig. n.d. “Ethnologue: Lan­ guages of the World (25th Edition).” Accessed November 23, 2022. https://www. ethnologue.com/about. Entomological Society of Canada. 2022. “Entomological Society of Canada Adopts Spongy Moth as New Common Name for Lymantria dispar.” https://esc-sec.ca/ 2022/03/02/new-common-name-for-lymantria-dispar/. Entomological Society of America. 2022. “‘Spongy Moth’ Adopted as New Common Name for Lymantria Dispar.” https://entsoc.org/news/press-releases/spongy-m oth-approved-new-common-name-lymantria-dispar. Entomological Society of America. n.d. “Common Names of Insects Database.” Accessed December 7, 2022. https://www.entsoc.org/publications/common-names. Entomological Society of Canada. n.d. “Common Names.” Accessed December 7, 2022. https://esc-sec.ca/entomology-resources/common-names/. Ertter, Barbara. 1993. “Rosa.” In The Jepson Manual: Higher Plants of California, 972–973. Berkeley, CA: University of California Press. Farooq, Harith, Cláudio Bero, Yolanda Guilenge, Clemintina Elias, Yasalde Massingue, Ivo Mucopote, Cristóvão Nanvonamuquitxo, Johan Marais, Alexandre Antonelli, and Søren Faurby. 2021. “Species Perceived to Be Dangerous Are More Likely to Have Distinctive Local Names.” Journal of Ethnobiology and Ethnomedicine 17: 69. doi:10.1186/s13002-021-00493-6. Figueiredo, Estrela, and Gideon F. Smith. 2010. “What’s in a Name: Epithets in Aloe L. (Asphodelaceae) and What to Call the Next New Species.” Bradleya 28: 79–102. Galbreath, Ross. 2021. “Why have so few Maori or Moriori names have been used in taxonomic description?” New Zealand Journal of Ecology 45: 1–3. Gillman, Len Norman and Shane Donald Wright. 2020. “Restoring Indigenous Names in Taxonomy.” Communications Biology 3, no. 1: 1–3. Hammer, Timothy A. and Kevin R. Thiele. 2021. “(119–122) Proposals to Amend Articles 51 and 56 and Division III, to Allow the Rejection of Culturally Offensive and Inappropriate Names.” TAXON 70, no. 6: 1392–1394. doi:10.1002/tax.12620. Heard, Stephen B. 2020. Charles Darwin’s Barnacle and David Bowie’s Spider: How Scientific Names Celebrate Adventurers, Heroes, and Even a Few Scoundrels. New Haven: Yale University Press. Heard, Stephen B. 2022a. “Can You Change a Species’ Common Name?” Blog. Scientist Sees Squirrel. November 22, 2022. https://scientistseessquirrel.wordpress.com/2022/ 11/22/can-you-change-a-species-common-name/. Heard, Stephen B. 2022b. “On Text-Mining Using Google Search Tools.” Blog. Scientist Sees Squirrel. December 6, 2022. https://scientistseessquirrel.wordpress.com/2022/12/ 06/on-text-mining-using-google-search-tools/. International Commission on Zoological Nomenclature. 1999. International Code of Zoological Nomenclature. 4th ed. https://www.iczn.org/the-code/the-code-online/. International Commission on Zoological Nomenclature. 2022. “Commissioners.” 2022. https://www.iczn.org/about-the-iczn/commissioners/. International Commission on Zoological Nomenclature. n.d. “ICZNwiki.” Accessed November 23, 2022. http://iczn.ansp.org/wiki/. International Committee on Taxonomy of Viruses. 2021. The International Code of Virus Classification and Nomenclature. https://ictv.global/about/code. Isaak, M. 2019. “Curiosities of Biological Nomenclature.” http://www.curiousta xonomy.net/.

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Jäger, Peter. 2020. “Thunberga Gen. Nov., a New Genus of Huntsman Spiders from Madagascar (Araneae: Sparassidae: Heteropodinae).” Zootaxa 4790, no. 2: 245–260. doi:10.11646/zootaxa.4790.2.3. Joshi, Shantanu. 2022. “Platygomphus benritarum sp. nov. and Rediscovery of Anormogomphus heteropterus Selys, 1854 (Odonata: Anisoptera: Gomphidae) from Tezpur, Assam, India.” International Journal of Odonatology 25: 62–71. Knapp, Sandra, Maria S. Vorontsova, and Nicholas J. Turland. 2020. “Indigenous Species Names in Algae, Fungi and Plants: A Comment on Gillman and Wright (2020).” TAXON 69, no. 6: 1409–1410. Linnaeus, Carl. 1735. Systema Naturae, Sive Regna Tria Naturae Systematice Proposita per Classes, Ordines, Genera, and Species. Leiden: de Groot. Linnaeus, Carl. 1736. Fundamenta Botanica Quae Majorum Operum Prodromi Instar Theoriam Scientiae Botanices per Breves Aphorismos Tradunt. Amsterdam: Scouten. Linnaeus, Carl. 1737. Critica Botanica in Quo Nomina Plantarum Generica, Specifica, and Variantia Examini Subjicuntur, Selectiora Confirmantur, Indigna Rejicintur; Simulque Doctrina circa Denominationem Plantarum Traditur. Leiden: Wishoff. Locey, Kenneth J. and Jay T. Lennon. 2016. “Scaling Laws Predict Global Microbial Diversity.” Proceedings of the National Academy of Sciences 113, no. 21: 5970–5975. Mammola, Stefano, Nathan Viel, Dylan Amiar, Atishya Mani, Christophe Hervé, Stephen B. Heard, Diego Fontaneto, and Julien Pétillon. 2023. “Taxonomic Prac­ tice, Creativity, and Fashion: What’s in a Spider Name?” Zoological Journal of the Linnean Society, in press. doi:10.1093/zoolinnean/zlac097. McGlone, Matt S., Peter B. Heenan, Aaron D. Wilton, and Atholl Anderson. 2022. “Proposal to ‘Restore’ Indigenous Names Misunderstands the Complementary Nature of Botanical Nomenclature and Indigenous Vernacular Plant Names.” New Zealand Journal of Botany 60, no. 3: 215–226. Melo, Martim, Bárbara Freitas, Philippe Verbelen, Sátiro R. da Costa, Hugo Pereira, Jérôme Fuchs, George Sangster, Marco N. Correia, Ricardo F. de Lima, and Angelica Crottini. 2022. “A New Species of Scops-Owl (Aves, Strigiformes, Stri­ gidae, Otus) from Príncipe Island (Gulf of Guinea, Africa) and Novel Insights into the Systematic Affinities within Otus.” ZooKeys 1126: 1–54. Michel, Jean-Baptiste, Yuan Kui Shen, Aviva Presser Aiden, Adrian Veres, Matthew K. Gray, Google Books Team, Joseph P. Pickett, Dale Hoiberg, Dan Clancy, and Peter Norvig. 2011. “Quantitative Analysis of Culture Using Millions of Digitized Books.” Science 331 (6014): 176–182. Mlynarek, Julia J., Chloe Cull, Amy L. Parachnowitsch, Jess L. Vickruck, and Stephen B. Heard. 2022. “Does Science Drive Species Naming, or Can Species Naming Drive Science? A Perspective from Plant-Feeding Arthropods.” bioRxiv. doi:10.1101/ 2022.06.28.497962. Mosyakin, Sergei L. 2022. “If ‘Rhodes-’ Must Fall, Who Shall Fall Next?” TAXON 71, no. 2: 249–255. doi:10.1002/tax.12659. Parker, Charles T., Brian J. Tindall, and George M. Garrity, eds. 2019. “International Code of Nomenclature of Prokaryotes.” International Journal of Systematic and Evolutionary Microbiology 69, no. 1A: S1–111. doi:10.1099/ijsem.0.000778. Poulin, Robert, Cameron McDougall, and Bronwen Presswell. 2022. “What’s in a Name? Taxonomic and Gender Biases in the Etymology of New Species Names.” Proceedings of the Royal Society B: Biological Sciences 289, no. 1974: 20212708. doi:10.1098/rspb.2021.2708.

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Pyron, R. Alexander and David A. Beamer. 2022. “Systematics of the Ocoee Sala­ mander (Plethodontidae: Desmognathus ocoee), with Description of Two New Species from the Southern Blue Ridge Mountains.” Zootaxa 5190, no. 2: 207–240. Roloff, Erhard. 1936. “Pflege Und Zucht von Aphysosemion roloffi.” [Care and breeding of Aphysosemion roloffi]. Wochenschrift Für Aquarien- und Terrarienkunde 33: 324–326. Rookmaaker, “Kees” L. C. 2011. “The Early Endeavours by Hugh Edwin Strickland to Establish a Code for Zoological Nomenclature in 1842–1843.” Bulletin of Zoological Nomenclature 68, no. 1: 29–40. Rutter, Jordan E., Gabriel Foley, Jessica McLaughlin, and Alex Holt. n.d. “Bird Names for Birds.” Accessed November 23, 2022. https://birdnamesforbirds.wordpress.com/. Rydberg, Per Axel. 1917. “Notes on Rosaceae–XI. Roses of California and Nevada.” Bulletin of the Torrey Botanical Club 44: 65–84. Santamaria, Sergi, Henrik Enghoff, and Ana Sofia Reboleira. 2020. “The First Laboulbeniales (Ascomycota, Laboulbeniomycetes) from an American Millipede, Discovered through Social Media.” MycoKeys 67 (May): 45–53. doi:10.3897/ mycokeys.67.51811. Scheibel, Oskar. 1937. “Ein Neuer Anopththalmus Aus Jugoslawien.” [A new Anopththalmus from Yugoslavia] Entomologische Blätter 33, no. 6: 438–440. Strickland, Hugh Edwin. 1843. “Report of a Committee Appointed to ‘Consider of the Rules by Which the Nomenclature of Zoology May Be Established on a Uniform and Permanent Basis.” In Report of the Twelfth Meeting of the British Association for the Advancement of Science [1842], 105–121. London: John Murray. Thiele, Kevin R., Gideon F. Smith, Estrela Figueiredo, and Timothy A. Hammer. 2022. “Taxonomists Have an Opportunity to Rid Botanical Nomenclature of Inappropriate Honorifics in a Structured and Defensible Way.” TAXON early view. doi:10.1002/tax.12821. Toxinology WCH. 2018. “Clinical Toxinology Resources.” http://www.toxinology. com/. Tracy, Bryn H. 2022. “What’s in a Fish Species Name and When to Change It?” Fisheries 47, no. 8: 337–345. doi:10.1002/fsh.10750. Turland, N. J., et al. 2018. International Code of Nomenclature for algae, fungi, and plants (Shenzhen Code) adopted by the Nineteenth International Botanical Con­ gress Shenzhen, China, July 2017. Koeltz Botanical Books. doi:10.12705/ Code.2018. Winston, Judith E. 2018. “Twenty-First Century Biological Nomenclature—the Endur­ ing Power of Names.” Integrative and Comparative Biology 58, no. 6: 1122–1131. Zamichow, Nora. 1999, November 12. “Name Flap Ruffles Feathers.” Los Angeles Times. https://www.latimes.com/archives/la-xpm-1999-nov-12-mn-32707-story.html.

12 Names, Identity Interests, US American Trademark Law, and Collective Face Michael Adams

Introduction Like the rest of the world, US Americans love team sports, but US history has led to the problematic naming of their teams, from community sports for children to the professional leagues. There are Trojans and Wolverines, Cardinals and Vikings. There are also Indians, Redskins and Braves, wherein lies the problem. Pitchers of shut-outs in US baseball take no prisoners; US football is a form of Manifest Destiny—to win, a team must dominate all 100 yards, from its own zero-yard line across the field to the other “shore”. Every game replays US history in super-fast-mo, but with­ out any of the details required of valid history. The gameplay distracts spectators from the appropriative nature of the naming, and how the naming might affect the identity interests of Indigenous peoples and other marginalized groups in the US context. University and professional sports in the US are big business, and the appropriation extends beyond the use of terms as team names, to the commodification of those names as exclusive property of corporate interests. At this historical “moment”, the US confronts a crisis of racism and anti-racism. Racism is everywhere but also inscribed in team names which, while a very small proportion of the racist lexicon, are none­ theless very public, promoted commercially, and significant to fans’ emotional attachment to their teams. Recently, on 19 June 2017, the Supreme Court of the United States (SCOTUS) determined that racial slurs, while offensive, count as expressive speech protected under the United States Constitution, which allows them to be owned within the commercial sphere as trademarks—potentially a great advantage to sports franchises with caps and t-shirts to sell. Roused by the repeated killing of Black Americans by police, the Black Lives Matter movement, and in reaction to the naked racism that emerged in the wake of Trump’s election, many US Americans recognized the structural racism all around them. Racial slurs might now qualify as trademarks, but the door to such Constitutionally protected racism opened just when fewer Americans were willing to walk through it. DOI: 10.4324/9781003431510-12

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Thus, we see with new clarity the struggle over identity interests in names and naming. Teams brand themselves with names that then constitute part of their identities. The name then brings fans into a brand community and figures in their complex identities, without regard for those whom the names disparage. As they have suffered the disparaging effects of team names, offended groups have tried to block registration of terms like Redskins as tra­ demarks for decades but have now lost the legal argument. At its narrowest, the story is one of US life and law, but more broadly understood, it illustrates complex onomastic constructions of identity.

Sports Team Names, Branding, and Fan Identities Sports are a worldwide obsession in which the US participates fully, especially in US football, basketball, and baseball. Within communities, schoolchildren, their parents, and citizens at large cheer on school teams, almost always iden­ tified by a name and a mascot. For many US Americans, college and university sports are more important than the academic programs of the associated schools. At the football and basketball powerhouses, coaches are paid far more than the universities’ presidents. (For example, at Indiana University, where I teach, the university president earned $650,000 last year, and was a awar­ ded a performance bonus of $162,500, for a total of $812,000; by contrast, the head football coach made $4,900,000; he nonetheless ranks only tenth among 14 Big Ten Conference coaches; see Blau 2021). Professional teams represent cities (the Philadelphia Eagles, the Detroit Tigers, the Chicago Cubs), or regions (the New England Patriots), and fans are often deeply attached to them. My grandfather, who lived in a village in rural south­ western Michigan, listened to Cubs games on the radio for 50 years, during which they were the losingest team in baseball. Rooting for the losing Cubs was part of who my grandfather was. Baseball may be America’s pastime, but it was more than mere pastime for him. Not all the enthusiasm is intrinsic to the sports, however. At the university where I teach, teams are named the Hoosiers, the same as the nickname for Indianans; and students and alumni identify as Hoosiers even if they come to the university from another state or country. The affiliation is sometimes irre­ sistible even for those, like me, who care nothing for university sports. I grew up in Michigan so am a Michigander, not a Hoosier, and as an alumnus of the University of Michigan, I am a Wolverine, not a Hoosier—I am looking at a Wolverine figurine on my desk as I write this sentence. Major university and professional sports teams encourage fan identification with the team and its brand because it generates revenue. Sports team fandom and team names are thus heavily implicated in American identity, both individual and cultural. When Elena Negrea-Busuioc and Diana Luiza Simion (2021: 276) write about nicknames for sports teams, they have in mind derivatives of the full team names, like the Cs from the Boston Celtics, or the Vikies for the Minnesota Vikings. “Nicknaming is an important identity component of the

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sports ethos, acting as a symbolic resource that athletes, teams, and fans turn to when defining or differentiating themselves from others” (Negrea-Busuioc and Simion 2021: 275). The symbolic resource is already established, however, in team names, exploited by fans in their in-grouping, and by the sports franchises in their branding and marketing. The social semiotic importance of team names and their nicknames comes as no surprise, for it is evident in all branding and marketing. As Marcel Danesi (2006: 14) explains, a product with a name […] tap[s] into the brain’s memory reservoir. It is easier to remember things as words than to remember the things themselves. A word classifies something, keeps it distinct from other things, and, above all else, bestows socially relevant meanings to it. The name Ivory for example, evokes an image of something “‘ultra-white’” […] Such suggestive images stick in the mind. Inevitably, then, as Negrea-Busuioc and Simion (2021: 276) argue, sports team nicknames carry a big load of semiotic implication and build on brand identity elements and their symbolic value, whether they refer to the origin, brand, heritage, history of visual identity (i.e., mascots, crest). […] We can also notice the power they have in activating a broader imagery built around brand team identity. Thus, we aim to assess the potential of nicknames […] as a symbolic and expressive identity function, fostering a strong sense of belonging to the team community. In other words, names are far from isolated markers of identity, but parti­ cipate in a thriving economy of identity construction. At the intersection of marketing, cross-marketing, product placement, televised sports contests, and so much more, emerges a “we-ness feeling” (Negrea-Busuioc and Simion 2021: 278). For fans, the we-ness is associative and often replaces other experience or feeling. So, my grandfather, alone in a room in Lawton, Michigan, could hear the broadcast Cubs game and imagine himself in Wrigley Field, with others in the “we”—at least he knew he was one of a we that listened to games on the radio. It explains why I feel a we-ness with other Wolverines even though I don’t share a love of sports with them—the identity trap catches even the wariest Wolverine. My grandfather responded to the Cubs as part of an audience, not a brand community. Times have changed, as Henry Jenkins (2006: 20) explains: “According to the logic of affective economics, the ideal consumer is active, emotionally engaged, and socially networked. Watching the advert or consuming the product is no longer enough; the company invites the audience inside the brand community”. Joining the brand community means more than affiliating with a team’s name. It also involves commodification (by the team) and consumption (by the fans) of “mascots, crest” and

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programs, cups, t-shirts, and hoodies; all of them semiotically salient. The team’s namer seeks to trademark the name and its nicknames, promoting brand fluency and fending off any commercial activity that might confuse fans (consumers) about the source and character of their identity—their we-ness in relation to the team.

Slurs and Sports Team Names The problem with we-ness is that it always comes with a cost—not for members of the we (except for the costs associated with fandom) but those excluded from it. Often, these are relatively benign, as when youthful ingroups develop slang to identify themselves against aging outsiders and peers they don’t like. In US sports team naming, branding, and fandom, however, the forms of exclusion are far from benign and not infrequently harmful. Frank Nuessel’s classic article on objectionable sports names starts by stipulating that objectionable names are in the minority: “The ten most frequently used nicknames for college and athletic teams […] are, in order of popularity, Eagles, Tigers, Cougars, Bulldogs, Warriors, Panthers, Indians, Wildcats, and Bears” (Nuessel 1994: 101). For fans and consumers, such names call to mind the cold-eyed savagery of the raptor, the tenacity of the bulldog, cats from which there is no escape—Nature’s winners, you might say. Such team names are hopeful though not prophetic. But we must pause over Indians. In an intelligence test, Indian might be the term that is not like the others, but a more socially and metaphorically aware assessment would note that Indians are cast as animals in such a list and conclude that Indian used as a team name is derogatory—a racial slur. The repertoire of US sports team names, from primary school to professional teams, is replete with such slurs: Apaches, Blackhawks, Braves, Brown Indians, Canucks (the sole Canadian example), Chiefs, Chippewas, Choctaws, Fighting Sioux, Hurons, Illini, Indians, Injuns, Mighty Oaks, Mohawks, Papooses, Pequots, Redman, Redskins, Savages, Seminoles, Squaws, Tomahawks, Tribe, and Warriors, all culled from Nuessel (1994). US Indigenous peoples are not the only targets: there are also Ragin’ Cajuns and Arabs. Hoosier ‘rustic bumpkin’ was once a slur against Indianans by Kentuckians but is wholly re-appropriated today. Some of these names, since recognized as slurs, have been replaced. So, the list perhaps better represents the history of American sports, sports-naming and branding, and racism than the current scene. But such names endure, and their situation is complicated by contrary developments in American law and social attitudes. Nuessel suggests that, while some might call these names “racist”, some of the namers meant to honor US Indigenous peoples—certainly, this was one of the motives behind the Mighty Oaks, named after an actual person named Mighty Oak in English (Nuessel 1994: 104)—so we might consider use of the names racially insensitive rather than racist (Nuessel 1994: 103). Semiotically, the names project positive traits of teams (courage, strength, etc.) as well as

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the animalistic ones (Nuessel 1994: 108). The negative connotations, however, characterize US conflict with Indigenous peoples and figure indisputably in negative stereotypes of them, as well as the history of their oppression (Redskins, for instance, derives from a word coined as early as 1699; see Green 1996: 36). In other words, they are always racist, even when they are also more than racist. Many US sports fans prefer to think of the names as honorific rather than derogatory, too. Racism doesn’t align well with their self-images as fun-loving sports fans. From a linguistic point of view, that’s not really plausible. Slurs are a tool for doing—indeed apparently designed to be used for doing— a bad thing. They make it easy to express a disgraceful state of mind, and to harm; and they provide no apparent gain with respect to any benefit. Being a facilitator of harm makes any such thing bad in that respect, a least, whether or not the thing ever actually facilitates harm, which of course slurs often do. (Sosa 2018: 1, emphasis original) In the case of US sports team names, there is a possible benefit: the we-ness of fans. However, that comes at the cost of dehumanizing US Indigenous peoples, so is nonetheless a bad thing, if not only a bad thing for everyone. In the USA, use of Indigenous names for sport teams is a form of oppres­ sion, because, as Irving Lewis Allen (1990: 6) puts it: “Majorities have probably been the greater users of ethnic slurs because they [have] a greater interest in keeping other groups down”, though members of min­ ority groups slur one another, too. In some US football stadiums and baseball fields, the majority and all other minorities join in oppressing Indigenous peoples. Among other bad things, slurs insult those targeted and reduce complex Indigenous cultures to what white folks in the States have wanted to see—or needed to see to justify displacing and rupturing those cultures and conquering those peoples. It’s a compound insult because some form of appropriation occurs in “borrowing” words that characterize Indigenous people for team names—some, like Choctaw and Sioux are borrowed names, and others, like Papoose and Squaw, are borrowed words made into names. They were bor­ rowed without permission, needless to say, and used in ways that belittle the concepts. Appropriation is itself an insult, a yanking away of identity. I don’t know what Mighty Oak’s Amerindian name was, but it wasn’t Mighty Oak, and it certainly wasn’t Big Chief Mighty Oak, as white legend has it. Geneva Smitherman (2006: 52) draws the line between “calling” people with a slur and “addressing” them with one—the latter a discourse practice within the slurred group. Slurring sports team names are not just what US Americans call the teams but what they call or have called Indigenous peoples—a calling reiterated in their conversational and commodified contexts.

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This principle, that reiteration does not cancel but instead amplifies insult, is more important than most US Americans realize or want to realize: Team nicknames […] can be considered part of the wider brand identity repertoire (as developed by the team itself or its fan community), but also evaluative labels assigned by an out-group name-giver, and carrying pejorative, racist or ethnic overtones. (Negrea-Busuioc and Simion 2021: 279)1 If the brand is founded on racist appropriation, one cannot participate in the brand identity constructed from that racism without participating in the racism as well. US American sports fans beg to differ, because in using the team names, they intend to construct we-ness, not racism; but Bianca Cepollaro (2017: 15) argues: “If no one says anything” about a slur, because they prefer not to interpret it as one, “the introduction of derogatory and discriminatory contents transforms and shapes the common ground and it legitimates further uses of slurs as well as corresponding discriminatory utterances”. It’s just a team name, owners and fans object; it’s more-or-less the definition of structural racism, the Critical Race Theorist responds. In a complementary approach, Elisabeth Camp (2013: 336) frames the issue softly as a matter of perspective, but her philosophical sense of “per­ spective” is loaded. Using a team name that slurs Indigenous people may not seem all that unethical from an out-group perspective, but the practice cas­ cades in use and alters cognition: Above all, perspectives are ongoing dispositions to structure one’s thoughts, along at least two dimensions. First, a perspective involves dis­ positions to notice and remember certain types of features rather than others, so that those features are more prominent or salient in one’s intui­ tive thinking and have more influence in determining one’s classifications […]. Second, a perspective involves dispositions to treat some classes of features as more central than others, in the sense of taking those features to cause, motivate, or otherwise explain many others. Another way of looking at centrality of features is as a reduction of features to those approved by one’s perspective. A culture and a person of that cul­ ture become less from a perspective that reduces them to a stereotype. That’s an insult. One may not speak the slurring name, but one is complicit in the slur when one affiliates with the brand perspective. Words slur with varying intensity, but at their worst, any observer of their use must act against them to avoid complicity in the slurring (Anderson and Lepore 2013: 38). Participation in a brand community makes evading compli­ city in a slur next to impossible. And the harms that attend slurs may not end with the brand community’s use of a single slur as a team name. The danger of slurs, Cepollaro (2017:15) argues, is that they “not only reflect the

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discriminatory practices and beliefs of a certain community, but they also spread them, by imposing such beliefs in contexts where they were not expli­ citly shared”. Some Indigenous people, aware of the spread, contest the rights of teams and their fans to slur them in the interest of team/fan solidarity. Geoffrey Nunberg (2018) appreciated Camp’s (2013) argument and supplemented it critically: The users of a slur don’t always see it as the expression of negative feelings, yet it can evoke an angry reaction from its targets even so. The majority of people who use redskin think that they’re conveying their respect for American Indians, but the Indians themselves hear it as the expression of racial animus. […] And it means that here, too, the impact of the utterance must be determined in part by what the speaker intends and in part by external considerations. (Nunberg 2018: 284) I’m not sure that intention is the essential component, however. Rather, I think that what matters is what people do with the word. For instance, within their brand community, collectively and without reference to the presumed targets of the slur, they may deem it unmarked, and go about their (mostly white but rarely Native American) business. Nunberg agrees that the effects of slurs occur in discourse and aren’t properly semantic at all, approaching Camp’s (and my) position: Speakers do bear moral responsibility when they manifest an intention to affiliate with the provenance of a slur in the knowledge that it is not the default term for a group, even when they disclaim any derogatory intent and insist that the word itself is not a derogation at all. A contemporary American who refers to an Indian as a redskin or who defends the use of the term by others, as we saw, may believe in all sincerity the word is being used in a respectful way. But we’re apt to hold her morally accountable even so […]. In the judgment of critics and of many Native Americans, to hear those usages and the attitudes they signal as respectful is not just ignorant but culpably obtuse. […] Thus the explosive impact of strong slurs […] follows from the affiliatory gesture that a speaker performs with a slurring speech act, which is why I say that it’s the self-affiliating function of slurs that gives them the power to injure and intimidate. (Nunberg 2018: 287) He quotes Judith Butler more succinctly: “The speaker who utters the racial slur is […] making linguistic community with the history of speakers” (Nunberg 2018: 286). And it’s under that provision that “[r]acists don’t use slurs because they’re derogative; slurs are derogative because they’re the words that racists use” (Nunberg 2018: 244). On this theory, there is plenty of racism to go around.

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The self-affiliating function of slurs is exactly the problem. We-ness over­ whelms ethical considerations. Some citizens, probably the majority, can’t adequately negotiate the ethical relationship between their own perfectly understandable social need for affiliation and the need or desire on the part of marginalized communities for some measure of public respect. Slurs obviously violate that desire, and thus one might expect law to settle the matter, recog­ nizing competitive interests but insisting on the dignity of all citizens under the law. The law, one hopes, would arrive at a compromise that supports the interests of all groups implicated in the use of slurs as sports team names.

Matal v. Tam and the Wild West of American Sports Team Slurs Until recently, US trademark law stood as a bulwark against disparaging language, some of which we’ve come to call slurs, though the word wasn’t used as such until recently (Nunberg 2018: 238). In the US, the Constitution’s free speech provisions make restriction of what other countries exclude from public discourse as “hate speech” impossible. The protection against trade­ marked slurs was thus minimally valuable, but it was something. The Lanham Act of 1946—which governs US trademark law—prohibited use of derogatory terms like slurs in federally approved trademarks. To quote the Act, trademarks may not “disparage […] persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” (qtd. in Matal v. Tam 2017: 5–6). For decades, the Trademark Trial and Appeal Board (TTAB) refused to register derogatory trademarks, including sports team names that slurred groups marginalized in the American context. The TTAB could not regulate what teams called themselves or how fans interpreted and acted on those names as, for instance, with the reprehensible “Tomahawk chop” of the Atlanta Braves. All of that is speech the US government cannot control. But the TTAB could resist ownership of appropriated terms like Braves and tomahawk for commercial purposes, and that mattered to sports franchises and fans. For the franchises, it meant loss of revenue; anyone could put Braves on a t-shirt or cap or cup. The team could appropriate the terms, but it could not achieve ultimate appropriation. For the fans, it meant a less fulfilled brand community since, without trademarking, the brand leaked into commerce beyond their social semiotic control. Trademarks protect and promote a brand community’s we-ness. Under the Lanham Act, however, that we-ness could not come at the expense of some other group’s dignity. This frustrated a number of sports franchises that had adopted names drawn from stereotyped Indigenous cultures. Prin­ cipal among these was the Washington Redskins, which attempted to tra­ demark Redskins several times, to no avail (see Nunberg 2018: 258–259; Nick 2018: 258–260). Since Matal v. Tam (2017), a case recently decided by SCOTUS, they may do so with impunity. Suddenly, putatively derogatory team names were not only viable, but those outside the brand community could not trespass on the team’s property, could not rustle its brand.

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The change came from an unexpected direction. In the words of Justice Samuel Alito, who wrote the majority opinion, Simon Tam—founder of The Slants, the first all Asian-American dance-rock band—applied for federal trademark registration of the band’s name […] “Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force. (Matal v. Tam 2017: 1) The United States Patent and Trademark Office (USPTO) refused the application because slant refers to the disparaging stereotype that people of Asian heritage are “slant-eyed”. The band hoped to “‘take ownership’ of stereotypes about people of Asian ethnicity” (Matal v. Tam 2017: 7). The USPTO obstructed that reappropriation. Tam and The Slants proved resilient litigants. The Court decided that the Lanham Act’s disparagement provision offends the First Amendment to the Constitution—which among other things protects freedom of speech and expression—and thus invalidated the relevant section of the Act, over­ turning a fundamental presumption about what sort of speech trademarks should not be. For the Court, the central issue was obvious: “a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys” (Matal V. Tam 2017: 4). Slurs are cruel, but government isn’t the arbiter of cruelty, at least, not in speech. If it pretends to that power, the government commits “viewpoint discrimination” (Matal v. Tam 2017: 7), as the Court found it had in Matal v. Tam. “Giving offense is a viewpoint” (Matal v. Tam 2017: 22). Importantly, the Court’s opinion absolutely does not accept the Redskins’ defense. It insists that The Slants is derogatory, and Redskins—similarly pro­ tected under the ruling—is similarly derogatory. They aren’t arbitrary brand designations. They aren’t neutral terms or “robust informal synonyms”. They are bad words US Americans now have a right to register as trademarks. And US Americans have that right because the slurs express viewpoints. The Court accepted that The Slants’ reappropriation of a derogatory term expresses a sociopolitical point of view. But such an act can only be meta-expressive if the slur is also expressive. Of course, Native Americans and their allies already knew that Redskins expressed a racist viewpoint. The law no longer protects them from its use, but the opinion disallows prevarication and dishonesty about what sort of viewpoint it is. That’s the Court’s analysis. Poser (2006) argues that Redskin cannot be derogatory because it’s a translation of a word some US American Indigen­ ous peoples used for themselves, and so he attempts to debunk a 1992 complaint to the TTAB that claimed the name as derogatory. His view

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overlooks a number of sociolinguistic issues at play in the conflict over offensive sports team names, like appropriation, and the likelihood that ingroup and out-group uses of the word signify differently. Rather, he suggests that Indigenous peoples learn some history and accept that Redskins is not derogatory, regardless of how they understand it in current discourse, regardless of how they feel. In fact, many Indigenous Americans feel that it’s a disparaging term (Newsom 2020; see also a fine summary of opinion in Maggio 1997: 338–339; and Nunberg (2014) also begs to differ). Can white Americans just take words from the groups they enslaved and slaughtered and relocated, so that they can affiliate with a team, join its brand community and have some fun? Can a fun use in commerce cleanse the word of its historical and cultural detritus? Nunberg (2014) thinks not: If it’s a slur when you say it to an American Indian’s face, it’s a slur when you sing it with 80 thousand other fans. Of all the things that defenders of the name have said, there’s nothing to touch the effrontery of [Bob] Raskopf’s assertion [Raskopf was the Redskin’s trademark lawyer] “This is our word”—as if the team had the power to pluck the word out of history, both theirs and its own, and oblige everyone, Indians included, to honor their meaning of the word. The lack of Indigenous Americans’ authority over that and other slurs against them is an indignity, and the ensuing conflict, in courts and the court of public opinion, is a type of a cultural face-off.

Collective Face Sports team name slurs publicly challenge the public dignity of Indigenous Americans. When fans of the Atlanta Braves do the Tomahawk Chop, or when the Washington Redskins not only appropriate a word from an Indigenous culture to signify the team but fight to trademark it over and over in the courts as “their” word, Indigenous peoples lose face. Inter­ personal interactions negotiate two types of face. Positive face is what we show to others and hope at least some of the time it will be admired by at least some of the others; negative face is what we reserve, the right to go unimpeded in pursuing our goals (Brown and Levinson 1987: 62). The notion of face and facework was proposed first by Erving Goffman in Interaction Ritual: Essays on Face-to-Face Behavior (1967). Goffman meant “face-to-face” quite literally, as person-to-person. But consider some of face and face-work’s basic tenets: �

“One’s own face and the face of others are constructs of the same order; it is the rules of the group and the definition of the situation which determine how much feeling one is to have for face and how this feeling is to be distributed among the faces involved” (Goffman 1967: 6).

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Michael Adams One “fears loss of face […] partly because the others may take this as a sign that consideration for his feelings need not be shown in the future” (Goffman 1967: 7). “Just as the member of any group is expected to have self-respect, so also he is expected to sustain a standard of considerateness; he is expected to go to certain lengths to save the feelings and the face of others present, and he is expected to do this willingly and spontaneously because of emotional identification with the others and with their feelings” (Goffman 1967: 10). “By face-work I mean to designate the actions taken by a person to make whatever he is doing consistent with face. Face-work serves to counteract ‘incidents’—that is, events whose effective symbolic implications threaten face” (Goffman 1967: 12). “When the participants in an undertaking or encounter fail to prevent the occurrence of an event that is expressively incompatible with the judg­ ments of social worth that are being maintained, and when the event is of the kind that is difficult to overlook, then the participants are likely to give it accredited status as an incident—to ratify it as a threat that deserves direct official attention—and to proceed to try to correct for its effects” (Goffman 1967: 19). “One’s face, then, is a sacred thing, and the expressive order required to sustain it is therefore a ritual one” (Goffman 1967: 19).

A bulleted sampling of the terms of that ritual hardly stands fairly for Goffman’s theory, which is dense, not entirely consistent (to my mind), and laced with many prejudicial comments—those of the author and of his time and place (see, for instance, Goffman 1967: 61). In broad outline and many of its particulars, however, it has proved useful to scholars in many fields, including this one. What if we reconsidered Goffman’s model of face-to-face interaction and expanded it to cover the interrelations between social groups, whom we might understand to have collective faces, whether sports fans or Indigenous peoples? One need only know a few overly enthusiastic sports fans to know that they think of their brand community’s face as sacred—though someone like me might take the claim less seriously than that the face of Indigenous peoples in the States is sacred—and must be sustained by social rituals of demeanor and deference (to use two of Goffman’s terms). If we conceive of the ritual relations between groups in this fashion, we may better explain antagonisms between them, and the paths to resolution of naming disputes that threaten one or another group’s face—disputes that are proceeded by a series of face-threatening acts (FTAs). FTAs are the “incidents” of which Goffman writes. Arguably, appropriating words and images from a marginalized group for the benefit of a sports team brand community constitutes an FTA. Repeatedly attempting to trademark those words for the benefit of a sports franchise and its community, without regard for Indigenous peoples, seems still more aggressively opposed to their

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collective face. Managers of a sports team and its fans may respond that their collective face is also implicated, and it is, which is why face-work is a nego­ tiation. For instance, when Indigenous people questioned Redskins as a high school team name in Cincinnati, Ohio, the school board resisted change: It was made clear to the board that the Redskins mascot belongs to the students and alumni of Anderson [High School], and that it will not be given up because of pressure or intimidation from outside groups such as the American Indian Movement. (quoted in Tarver 2016: 96) Here we encounter either Goffman’s naivete or his insistence on evaluating face interpersonally: “It is the rules of the group and the definition of the situation which determine how much feeling one is to have for face and how this feeling is to be distributed among the faces involved”. The justice of this depends on the determining group, which in the US means primarily white and almost completely non-Indigenous US American determiners. The basis of determination is unavoidably racist; Goffman’s formulation unwittingly affirms structural racism, yet face-work, on Goffman’s terms, if we can extend them into collective contexts, promises to address the ideological imbalance. Resolution of an FTA requires that the one responsible for it at least acknowledge it and, better yet, repair face-relations through face-work (Brown and Levinson 1987: 68). Yet in the cases of sports team names like Redskins and Braves, the teams and fans apparently cannot muster enough “emotional identification” to see Indigenous peoples’ face, so find the incidents identified as FTAs by Indigenous Americans easy to “overlook”. Communally, through the law, trademarks that slur were given “accredited status as an incident” that “deserves direct official action”, indeed, as official as the TTAB. But after Matal v. Tam, official action was disengaged. Matal v. Tam acknowledges the collective FTA yet obviates the official remedy for it. That leaves Indigenous peoples worried about their collec­ tive face to depend on the social rituals that count as face-work—this is perfectly articulated and, indeed, performed by Dr Anton Treuer (2019), of the Leech Lake Ojibwe—and to hope that sports fans whose teams and brand communities have appropriated their words and symbols are “rational agents” in the sense that Brown and Levinson mean. From the history of disputes over such names, one doubts that all the appropriating parties will be rational in the “face” sense; rather, they seem to follow a principle of rational collective interest instead. And while capitalism doesn’t necessarily exclude equity or social and historical justice, the pleasures of sports and of affiliation with like-minded sports fans—what we’d rather do—too often distracts us from what we ought to do, that is, “go to certain lengths to save the feelings and the face of others present, and he is expected to do this willingly and spontaneously”.

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Facing Up to Racist Sports Team Names When I first proposed writing about this subject for this book, I had little hope that the US would face up to the racist history and effects of some sports team names. The Redskins’ obduracy over decades and the political climate during the Trump presidency, on the heels of Matal v. Tam, suggested the status quo as its conclusion. In the worst-case scenario, all the teams with slurs as names would register them as trademarks once Matal v. Tam pointed the way. And why not? There’s a sort of historical logic behind the slurs: having cleared Indigenous peoples from the land, forced them onto reservations, sent them to horrific schools to “whiten” them, and neglected to pay legislatively approved funds for their welfare over the same decades that the Redskins franchise fought over the team name, it only makes sense to appropriate their words and turn them against them. A racist nation should have the courage of its convictions, after all. Imagine my surprise and delight, then, when the Redskins announced in the summer of 2020 that, despite their good fortune in Matal v. Tam, they would retire Redskins and look for another name (until they rebrand, they play under the generic name, the Washington Football Team). The following summer, the Cleveland Indians announced they would change their name, too, to the Guardians (Pruitt-Young 2021). I’d like to say the franchises had a racial awa­ kening all on their own, but in fact they abandoned their names to protect their sponsorship revenues. The team formerly known as The Redskins had been challenged to address the naming issue by FedEx (which underwrites the team’s stadium home), Bank of America, PepsiCo, and Nike (Iannaconi 2020); none of them is safely ignored when considering the bottom line. The pressure to change the names conforms with a theory of collective face. Between Matal v. Tam and the (de)naming announcements, several Black people were killed by police and vigilantes, and those high-profile tragedies led to a broadening of anti-racist perspective (to use Camp’s term) among American citizens and corporations. Thus, sponsors of the team formerly known as The Redskins demonstrated a new “standard of consideration”, because use of slurry sports team names, over and over, became the kind of FTA “that is difficult to overlook”. Prominent participants in the brand community gave it “accredited status as an incident” and then “proceed[ed] to try to correct for its effects”, rather than persist, complicit in the act. Goffman’s position proves neither naïve nor interpersonally narrow; it did support structural racism but paradoxically it also supports the awakening of sympathy for and responsibility towards Indi­ genous Americans: “it is the rules of the group and the definition of the situation which determine how much feeling one is to have for face and how this feeling is to be distributed among the faces involved”, Goffman (1967: 6) proposed, and in this case the definition of the situation changed radically enough that the rules changed. One can only hope the rules continue to change and that, someday, they change permanently, so names no longer function as brand-approved instruments of racism. We-ness can be served by any name.

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Note 1 See Nick 2018: 260 for an especially relevant, pithy example.

References Allen, Irving Lewis. 1990. Unkind Words: Ethnic Labeling from Redskin to Wasp. New York: Bergin & Garvey. Anderson, Luvell, and Ernie Lepore. 2013. “Slurring Words.” Noûs 47: 25–48. Blau, Jon. 2021, March 8. “IU Football Coach Tom Allen Gets Another Raise, Will Earn $4.9 Million per Year.” Indianapolis Star . Brown, Penelope and Stephen C. Levinson. 1987. Politeness: Some Universals in Language Usage. Second edition. Cambridge: Cambridge University Press. Camp, Elisabeth. 2013. “Slurring Perspectives.” Analytic Philosophy 54: 330–349. Cepollaro, Bianca. 2017. “Slurs as the Shortcut of Discrimination.” Rivista di Estetica 64 . Danesi, Marcel. 2006. Brands. New York and London: Routledge. Goffman, Erving. 1967. Interaction Ritual: Essays on Face-to-Face Behavior. New York: Pantheon. Green, Jonathon. 1996. Words Apart: The Language of Prejudice. London: Kyle Cathie. Iannaconi, Emily. 2020, July 23. “Franchise formerly known as Redskins announces new name in time for 2020 season: Washington Football Team.” Forbes . Jenkins, Henry. 2006. Convergence Culture: Where Old and New Media Collide. New York: New York University Press. Maggio, Rosalie. 1997. Talking about People: A Guide to Fair and Accurate Language. Phoenix, AZ: Oryx Press. Matal v. Tam. 2017. 582 U.S. 15–1293. Negrea-Busuioc, Elena, and Diana Luiza Simion. 2021. “What’s in a Nickname? Form and Function of Sports’ Team Nicknames.” In Differences, Similarities, and Meanings: Semiotic Investigations of Contemporary Communication Phenomena. Edited by Nicolae-Sorin Draˇ gan, 275–287. Berlin: De Gruyter Mouton. Newsom, Angelina. 2020, July 3. “Dear White People, Stop Telling Native Americans Like Me Whether We’re Offended by the Washington Redskins.” The Independent. Nick, I. M. 2018. “A Note on the 2017 Landmark US Ruling on the Constitutionality of Prohibiting the Trademarking of Potentially Disparaging Names.” Names: A Journal of Onomastics 66, no. 4: 256–262. Nuessel, Frank. 1994. “Objectionable Sports Team Designations.” Names 42: 101–119. Nunberg, Geoffrey. 2014, June 23. “When Slang Becomes a Slur.” The Atlantic . Nunberg, Geoff. 2018. “The Social Life of Slurs.” In New Work on Speech Acts. Edited by Daniel Fogal, Daniel W. Harris, and Matt Moss, 237–259. Oxford: Oxford University Press. Poser, Bill. 2006, March 26. “The Origin of Redskin.” Language Log .

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Pruitt-Young, Sharon. 2021, July 23. “Cleveland’s MLB Team Changes its Name to Guardians After Years of Backlash. NPR . Smitherman, Geneva. 2006. Word from the Mother: Language and African Americans. New York: Routledge. Sosa, David. 2018. “Introduction.” In Bad Words: Philosophical Perspectives on Slurs. Edited by David Sosa, 1–6. Oxford: Oxford University Press. Tarver, Erin C. 2016. “On the Particular Racism of Native American Mascots.” Critical Philosophy of Race 4: 95–126. Treuer, Anton. 2019, September 13. “Not Your Mascot: Native Americans and Team Mascots.” Twin Cities PBS .

13 What’s in a Name? Linguistic and Legal Aspects of Company Names, Product and Service Names, Trademarks, and Brands Alan Durant and Jennifer Davis Introduction Names have been given to commercial actors and products for centuries, as well as to activities traditionally grouped together as “trades” but now more often viewed as “services”. In Western countries during the 18th and 19th centuries, major changes took place in the use of such names, under the influence of social and economic factors including industrialization and mass production, the growth of international trade, and the development of new techniques of advertising. Business and product names took on additional functions and acquired greater importance. Subsequent shifts often arranged names used in commerce in families, forming networks of “brands” protected by trademarks. Over the same period, of course, commercial names also continued to be inter­ woven in use with many other kinds of names employed for different purposes. Modern practices deploying signs as commercial “names” differ from earlier, established conventions in a number of ways: (i) how particular names origi­ nate, now including those invented or selected through market testing; (ii) their typical verbal structure and the types of entity they are given to; (iii) the func­ tions such names serve, combining reference to commercial entities with indi­ cations of origin and promotional effects; and (iv) the need for names used for commercial purposes to comply with specialized bodies of rules that govern them. The field of “names used in commerce”, viewed in this light, invites sev­ eral lines of enquiry. Because the topic lies at an intersection between linguistics (more specifically, the linguistic study of names: onomastics), business, and law, this chapter examines names used in commerce through interdisciplinary exposition and discussion. Drawing on earlier work by the authors—individu­ ally, together, and with others—we seek to show how such names can be understood better by moving beyond paradigms available within any single discipline and bringing approaches in related fields into closer dialogue.

Essential Background: Names and Naming The concept of “name” is beset with difficulties, some of which acquire particular significance in relation to commerce. Relevant general background DOI: 10.4324/9781003431510-13

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on names and naming is therefore brought together here before being drawn on later in the chapter. Broadly, a name—typically one word or a short phrase—identifies something where ostension, or pointing to something, is not possible, making verbal indication essential in the absence of the referent. Using a name efficiently individuates a referent by means of a singular linguistic expression rather than repeated description. In this way, proper names appear inherently definite in that they refer to things treated as already existing. Nevertheless, identifying a referent simply as “something” elides an important issue: whether or not what is named exists physically (e.g., Highgate Pond, Mont Blanc); has previously existed (e.g., the Battle of Waterloo, Tutankha­ mun); has been conceived as an object of thought or imagination, albeit based to some extent on observation or experience (e.g., Pinocchio, Xanadu, Game Theory, the Anthropocene); or involves some combined mode of existence, for example, being physical, historical, or socially constituted, but possibly also mythologized by surrounding associations. A further complication surrounds the initial move of characterizing names as “identifying something”. A name may identify a singular, “unique” entity (historical period, person, place, sports team, star sign, technical standard), or alternatively a conceptual category or genus of things with many members. In this second sense, a name may be simply an ordinary word with a meaning: robin, rose—potentially by any other “name”—roar, rocket, recidivism. Such categories, of course, vary in their degree of precision or generality, in con­ creteness or abstraction, and in respect of what physical or conceptual world they are presumed to exist in. The boundary between these two axes of “naming” is not clear-cut. Some proper names refer to obviously collective categories, including social groups, rather than singular referents, and so may define individual, family or social identity (e.g., Inuit, Asian, Socialist). The boundary between the two kinds of naming is not static either; movement can take place in both directions. Descriptive elements may be embedded in a name’s form, creat­ ing “transparent” proper names (cf., Doc, Dozy, or Sleepy in Snow White); or movement may occur when proper names begin to denote categories by appearing exemplary, and consequently function as generic shorthand (e.g., someone acting like “a modern-day Napoleon”). Some nuances conveyed by “name” are signaled terminologically. As previously illustrated, the name for a unique entity is a “proper name”. When consisting of only one word, it is a “proper noun” (e.g., London, Levia­ than, Lithium). Nouns which refer to categories or types are “common names”, sometimes referred to as “general names”. “Nominal” (i.e., naming) expres­ sions which consist of more than one word take the grammatical form of extendable “noun phrases” (e.g., “John’s Restaurant”, “John’s Fish Restau­ rant”, “Old John’s Delicious Fish Restaurant by the Beach”). Name-forms of all kinds fit, in turn, into linguistic patterns around them in predictable ways. As well as operating as nouns, they can function as modifiers, being then

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adjectival (e.g., “Highland cattle”, “play the Arsenal way”, “Michelangelo’s David torso”). Some have separate adjectival inflections (e.g., Byzantine, Parisian, Popish). Proper names, like most words, can also communicate allusively (e.g., “Mona Lisa smile”; “it was Armageddon”). Such figurative uses push names towards functioning as categories even if they are applied to individual entities (“Mona Lisa smile”), though initially the name’s figurative use may have served to express a new perception or comment from which the later category followed (cf., visions of London as Singapore-upon-Thames or Londongrad). Whether physical or intangible, an entity identified by a name is its “referent”, rather than its “meaning”, the latter (if it exists for a name) being some combination of linguistic and conceptual properties which allow that referent to be picked out. This distinction complicates the notion of the referent’s identity for names which seem “transparent”, in that they appear to mean what they name; it has less bearing on “opaque” names that do not show descriptive characteristics. Somewhere between opaque and transparent names fall cases where a “transparent” dimension has become obsolete or is unknown. Some names are complicated further by being “affiliative” in indicating provenance, including some personal names (e.g., Maria or Mohamed, based on a parent, or a religious belonging). Related commemorative, celebratory, or sponsored names (e.g., Diwali, Rhodes Scholar) foreground cultural perspective by signifying origin and authenticity, pride, belonging, or aspiration. In contrast, other names do not so much affiliate the bearer to something that already exists as lend themselves to an emergent identity or serve as encouragement to others to affiliate. As they combine naming with self-promotion, reputation, or char­ isma, over time such names may acquire established referents. Alternatively, the resonance created around a name may persist even after underlying facts or values have changed. When this happens, names can become a flashpoint of contention—a development seen, for example, in protests over epon­ ymous buildings named after historical personages associated with slavery (e.g., Colston in the UK). Names generally achieve their basic function of identifying even when used with no thought as to origin, intended purpose, or significance. Theoretical questions nevertheless can arise regarding, for example, the “meaning” of a proper name, if indeed it has one. Debates surrounding that question—often involving the philosophers J. S. Mill, Gottlieb Frege, and Saul Kripke, among others—have examined whether names function as condensed or elliptical descriptions, acting as links to extralinguistic information for which they serve as proxies; or whether they refer by way of an originating “cause” in a perfor­ mative act of dubbing or baptism which may have actually taken place or may simply be presumed by later name-users.1 The first view suggests “meaning” of some general kind; the second indicates some other form of non-descriptive reference. In everyday language use, complications with names and naming mostly go unrecognized, however. As will be seen below, issues do nevertheless

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make themselves felt when names are scrutinized during legal disputes about their commercial use, because their characteristics and effects can be of con­ siderable economic or legal consequence.

Commercial Names Names of many kinds have been investigated not only in the philosophy of language but in onomastics—the scientific study of names and naming.2 When viewed through either lens, “names used in commerce” are mostly treated as one type among many (e.g., alongside personal names, river names, or street names). This chapter adopts a different approach. We highlight how far the usually singular category of “commercial names” consists of overlapping forms with different properties, which serve multiple purposes in their use. Such names may be unpredictable in nuance, connotation, and effect. Together they do form a category, of course, although the characteristics of the members of that category are not all well understood. To begin to map this field, we introduce some basic points related to com­ mercial names, picking up details from the general account of naming above. General Considerations Regarding Commercial Names The linguistic resources which combine in creating commercial names draw selectively on linguistic resources available for other kinds of naming. Such resources range from letters and sounds, through ready-made words, into made-up words and phrases. While made-up words are not uncommon in general naming as neologisms and nonce words, they are more often found where names are designed strategically, as commercial names often are. Where names consist of words already in general use, on the other hand, their naming function coexists with one or more meanings carried over from wider use, typically importing both conceptual meaning and affective asso­ ciations. Even invented neologisms exhibit some degree of non-conceptual resonance, based on “sounds-like” similarity and sound symbolism. Beyond purely linguistic resources, additional semiotic resources are also often deployed in creating name “signs”, resulting in kinds of “get-up” produced by font, color, and other resources of visual design. The verbal materials used in name creation offer vast choice, reflecting the fact that names, as typically nouns in form, are members of an extendable “open” grammatical class. Marketers have responded to such choice in devising commercial names by evolving a now well-established taxonomy that includes: (i) a description of what a company, product, or service is or does, either neutrally or as an act of self-promotion in the case of “laudatory names”; (ii) a statement of origin, often from a place or after a person who started or owns an undertaking, as is the case with “eponymous names”; and (iii) newly coined words, phrases, abbreviations, acronyms, or initials. Many commercial names modify these basic choices to incorporate: (iv)

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words ornamented by inventive spellings or creative prefixes or suffixes; or (v) words combined into phrases that create poetic effects through alliteration, rhyme, or other visual or phonological devices. Regarding meaning, broadly understood, names of these varying types convey “atmo­ spherics” in that (vi) they are associative or suggestive, and (vii) they refer to an undertaking suggestively rather than literally (e.g., metaphorically or metonymically: by personifying a process, or by presenting an image to convey an aim, vision, or successful outcome). The desirability and permissibility (or otherwise) of particular verbal features or effects in a commercial name will be viewed differently when assessed against different commercial purposes and relevant legal restric­ tions. Where names have been shortlisted by a naming or branding con­ sultancy, the fit of each shortlisted candidate name is assessed analytically.3 Invented names may be preferred over descriptive ones, not only because the latter will only be registrable as trademarks in exceptional circumstances, but also because they offer a “blank canvas” on which new, commercially favorable meanings can be projected, then curated. Evocative, abstract names may be liked because they ease territorial expansion, market growth, change of ownership, or product diversification. They may invite transfer of associations from one product onto another, building a brand. Common words may be favored as easier to pronounce and remember and/or because their familiarity facilitates integration of the name into some preferred lifestyle conception. While their origin may be calculated or spontaneous, proposed commercial names are always evaluated, if only impressionistically, by organizations putting them forward, for how pronounceable, memorable, formal or colloquial they are; and as regards whether unfortunate or obscene meanings may be perceived in them. Account is also taken of marketing considerations, including how well their associations align or conflict with present and desired market positioning. The choice of name is also influenced by legal constraints that vary according to commercial function, introduced below.

Company Names Company names are administered in ways evolved to serve a public interest in the effective administration, accountability, and public safety required of economic transactions. Such names also serve a consumer interest by redu­ cing search costs where a trade name functions as an authenticating “sig­ nature” to guarantee consistency and quality. While there are no specific property rights in companies’ registered names, businesses do mostly adopt one, though the names of partnerships and sole traders are generally not registered. Despite all businesses being assigned an official reference number for reporting, taxation, and other purposes, company names are widely regarded as offering advantages beyond referential efficiency.

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From a regulatory point of view, the core function of company names is to identify clearly a corporate bearer (and juridical owner): a body legally responsible for the business in question.4 Even in this respect, company names are complicated. Companies may enter into commercial groups. They may serve as a shell for, or be the property of, other companies with different names. Within any particular commercial group, different names may be given to internal divisions in an organizational naming architecture that parallels (or may serve to obscure) its operational and financial structure. Companies can also license their name for third-party use. Even businesses which have registered names may not be publicly known by them, since companies are permitted to adopt alternative, more convenient, “business or trade names” for everyday use, subject to restrictions. Company names are regulated with regard to what a name should be like, when and how it must be displayed, and how and for what purposes it can be used.5 In the UK, names cannot be registered, for example, if their use would result in commission of an offense or would be judged to be offensive. Other names are not directly prohibited but treated as sensitive, requiring pre-use approval of the Secretary of State (following comment from the relevant government department or other specified body) to ensure the name does not suggest business pre-eminence, status, or function; this applies to names that include, for example, charity, police, or dentistry. In addition, individual symbols within a company’s registered name may only be per­ mitted under certain circumstances. Restricted signs and symbols are listed in regulations which, despite introducing minor differences, would result in names that should be treated as identical to a prior, established name. Such rules are designed to restrict “opportunistic registration”, which consists of efforts to register a name that would mislead by either suggesting connec­ tions with another company, or by being the same as, or similar to, a name in which a complainant already has goodwill.

Product and Service Names With product and service names, broadly the same verbal resources are available as for company names. However, selection among them reflects different purposes and constraints. Complications may arise, for example, where the boundary of a “product name” appears imprecise because it is juxtaposed or combined with a company name, labelling, and additional material such as a strapline or slogan in layouts designed to create an overall brand “look and feel”. In such layouts, there is likely to be a combination of proper-name elements with descriptive material, each subject to a regime of regulation, but not necessarily the same one. Regulations differ, including how, and how far, they govern names for products in different sectors, for example medicines6 and foods.7 Names combined with related promotional material motivate consumers to buy, enhance the appeal of a product or service to its target audience, and

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build consumer loyalty by implying or evoking attributes, quality, and direct or indirect benefits.8 Even when such marketing discourse is understood within a paradigm of “commercial speech”, and guaranteed its own limited but definite standard of freedom, producer interests and creativity must be balanced against a public interest in receiving relevant and accurate infor­ mation, if fair competition is to be achieved.9 Regulatory emphasis is accordingly placed on excluding misleading descriptions and implied false associations while allowing latitude of treatment.10

Legal “Term-of-Art” Names Although company and product names clearly present difficulties, they are easy to think of as extensions of established naming conventions adapted for commercial contexts of use. The signs discussed in this section—trade­ marks—also extend naming conventions. In doing so, however, they sus­ pend or alter intuitive expectations about what names are and how they work. One difference between the kinds of name discussed above, and the name-like signs considered below, is that “trademark” is not a label for a customary practice of naming but a “term-of-art” category (i.e., a category created and used normatively, in a specialized manner in a designated field). The same might be said, though with less force, of company names and product names. Rules and restrictions imposed on company and product names appear to be pragmatic constraints seeking to mitigate acknowledged problems when names are used in commercial contexts. In contrast, modern trademarks are performatively created by law—both individually, through the process of registration in the case of registered trademarks, and collec­ tively, by being legally defined as a specialized kind of sign that confers exclusive rights under specified conditions.11 Companies and products have names which are regulated; but without legal stipulation, there is no such thing as a trademark, only protection under other measures such as the common law action of passing off.

Trademarks A trademark is not a name for goods or services in the sense of their identity “as such” or “in themselves”. It serves instead as a “name-like” sign: a “badge of origin” denoting one aspect of commercial identity—the fact that goods carrying the registered mark are overseen by the same commercial source. The link between sign and goods must be inferred for each occasion of use, but the legal status and scope of such a link are established by the sign’s registration for exclusive use on stipulated classes of goods or services. The history of indicating commercial ownership, or “source”, can be traced to antecedents in marks branded onto animals to demonstrate own­ ership, signatures on documents and artefacts to show authorship, and signs certifying authentic origin for industrially produced goods. In modern

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commerce, however, a trademark functions less directly. Being the commercial source overseeing goods does imply some connection with production, supply, distribution, or sales, but the mark may not communicate much about factual origin. For example, one single developing-world factory may manufacture clothing that will carry a number of different trademarks. Or a mark may represent the business of the goods’ retailer rather than manufacturer, as with a supermarket’s own-brand products. Or a mark may be acquired by a com­ pany which bears no direct responsibility for producing the marked goods. Despite this seeming vagueness, trademarks serve useful purposes. Tra­ demarks name through contrast, differentiating alternative sources of goods in ways that facilitate consumer choice. From a proprietor’s point of view, no goods other than theirs can be marketed as having the same origin. This protects investment and helps ensure quality against deceptive imitation. From the consumer’s point of view, the connection between product and badge of origin reduces search costs by making it easier to repeat a previous purchase or seek competitive alternatives. In a particular market, such dif­ ferentiating signs enhance competition and incentivize quality. The principal aim of the mark is usually presented as being to prevent consumer confu­ sion, but other functions have extended this basic conception and become important in relation to the notion of brands, as described below. To ask whether trademarks are “names” in this context is not straightfor­ ward, but neither is it a redundant question. To anyone “naming” shops in a mall, writing product names on a shopping list, or searching for goods online, the overlap between name, type, and mark is self-evident. Such perceived over­ lap strengthens a tendency to think of trademarks as enhanced versions of company or product names—an impression encouraged where commercial names are selected with a view to being also registered as trademarks. However, beyond the previously stated difference that a name refers to an entity directly, whereas a trademark obliquely indicates one important commercial attribute of that entity (i.e., its “source” or unique commercial origin), there are two further important ways in which a trademark differs from a prototypical name. Firstly, the two differ as regards their possible form. To be registered, verbal trademarks often depend on visual characteristics such as their font, which may be an essential, registered feature separating them from plain use of the same word or phrase as merely a name (this makes “trademark” a narrower category). At the same time, other trademarks consist entirely of semiotic resources other than language, such as color, sound, or shape (this makes “trademark” a broader category). Secondly, names and trademarks differ in their scope of use. Names identify their referent in all contexts except when employed figuratively. Use of a trademark, on the other hand, is only “use as a trademark” in specified circumstances. Other uses may denote or describe the source, and entities on which the mark functions as a badge, yet not amount to a claim to be that source. Each of these char­ acteristics calls for further comment if the complex relationship between trademarks and names is to be clarified.

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Trademarks as “Name-like” Signs In UK and European trademark law, signs registrable as marks are assessed functionally. The category of registrable signs consists of any sign “which is capable of distinguishing the services of one undertaking from those of other undertakings”.12 Whether a sign is capable of distinguishing in this way is assessed from the perspective of a hypothetical average consumer of the rele­ vant type of goods; the said consumer is assumed to be reasonably attentive, reasonably well informed, and circumspect.13 To be found “distinctive” signs do not need to exhibit linguistic or artistic creativity (though they may). All that is essential is that they are sufficiently contrastive to enable the average consumer to distinguish goods or services in the requisite way. Many signs are nevertheless not eligible for trademark registration. Some are ruled out on “absolute” grounds (e.g., on grounds of morality or public policy); most of these are deemed “devoid of distinctive char­ acter” based either on characteristics of the proposed sign itself or on the relation between the sign and goods (though note the important excep­ tion to this introduced by “acquired distinctiveness”, outlined below).14 Such grounds are prior to further, “relative” grounds for refusal of registration, which prevent registration of signs where another, identical or similar sign has already been registered in relation to identical or similar goods. On related grounds, signs put forward for registration in relation to use on dissimilar goods may also be rejected if the previous mark has a reputation.15 Even though the threshold for registration is whether a sign is distinctive or not, in the sense described above, signs assessed for registration are often considered to exhibit a more complex spectrum of characteristics. Such variation was influentially formulated in the US case, Abercrombie & Fitch Co. v. Hunting World Inc. (1976), which set out how proposed signs relate differently to the goods on which they would be used.16 Considering only verbal signs here, as those closest to names, a sign will be most dis­ tinctive if it is “fanciful”, typically consisting of one or more made-up words (e.g., Exxon, Xerox). The closest analogy for such signs in naming at large is “opaque” names. Such fanciful signs are potentially distinctive of any class of goods, because no connection exists, at least initially, between the sign and any particular type of goods. Next on the distinctiveness spectrum are so-called “arbitrary” signs. These consist of existing words or phrases which have meanings but no connection between the sign’s usual meaning and the class of goods on which it would be used (e.g., Apple, for computers). If, however, that same sign was proposed for use on fruit-flavored drinks, “Apple” would not be registrable. The next category, still potentially distinctive but more in need of explication, are “suggestive” signs. These imaginatively evoke the goods in question by prompting a mental leap in consumer imagination, typically through a figurative device or association. An example here would be Netflix, for online film screening.

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These three types of sign will all be registrable, subject to other con­ siderations (e.g., precise details of their ornamentation or “get-up”). Despite the overall test for registration being binary (i.e., “capable of distinguishing, or not”), calibrating sign-types encourages a more transparent process of analysis in difficult cases where a sign is close to the registration borderline. An excellent example is the UK-registered mark for nappies, Baby Dry, which was judged to be sufficiently distinctive on the basis of its verbal idiosyncrasy, despite its countervailing characteristic of being descriptive.17 Signs failing to meet the threshold for registration fall into one of two categories. First, a “descriptive” sign “consists of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin … or other characteristics of the goods or service”.18 Description is a broad characteristic, but place names generally fall within this category, as do laudatory names (e.g., Deluxe, Supreme, Ultimate) which praise the commercial undertaking or its goods. “Descriptive signs” are not regi­ strable, subject to a major proviso described below, because they conflict with the interest of other undertakings who might also wish to use the same or a similar description for their own goods. The second category of non-registrable signs are signs “common to the trade”. These include signs where the proposed name would be “generic” in the sense that it is not only descriptive but is also the same as the wider, category name for the type of goods on which the sign would be used (e.g., Pencils for pencils; Pet food for pet food). The Abercrombie taxonomy of signs, which draws distinctions paralleled in UK and European law, albeit with sometimes different wording, draws atten­ tion not only to a sign’s form and meaning but also to its relation to the goods on which it would be used. Such an approach might seem too static, given how far the use and meaning of signs alter according to context. Trademark law does, however, acknowledge the dynamic character of signs in use, in its approach to the stage at which a sign must show its distinctiveness. As descri­ bed above, the sign categories outlined assess whether a sign is distinctive “inherently”, prior to use on the market (i.e., at its initial adoption, ab initio). An important exception arises, however, in that trademark law also recognizes that signs which were not distinctive when deemed or dubbed as names for registration purposes may nevertheless gain “acquired distinctiveness” through unregistered use on the market. Such signs develop a “secondary meaning” as the name of the source of goods in question. The analogy for this process in naming-at-large is that of transparent names, where a name has its origin in a descriptive meaning onto which an additional, “proper name”-use has been superimposed, so that the same sign has two concurrent uses: a naming use and a descriptive use. In trademark law, the outcome is this: a sign which includes an otherwise excluded descriptive or unregistrable aspect has become distinctive for tra­ demark purposes because over time it has become in fact capable of distin­ guishing in the required sense. Conversely, if the meaning of a registered sign shifts in the opposite direction, it may be judged to be generic and its

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registration cancelled. This decision may be made if, in general use, a sign has become so exemplary of an area that it “owns” the product space, to the extent that it has come to represent an entire category. In such circumstances, the sign is no longer understood to distinguish a commercial source but rather a type of goods (e.g., aspirin for pain relievers, and linoleum for floor coverings). Clearly, commercial choice of names to register as trademarks requires balan­ cing benefits against costs. With an obviously “distinctive” source-denotative sign, a proprietor may have confidence in gaining legal protection. By comparison, with a more associative, possibly borderline-descriptive sign, the same proprietor might scoop up into the chosen name aspects of evocation from general usage without losing the essential degree of distinctiveness. To the extent that trade-offs are possible, many effective trademark names draw successfully on the capability of “names” to combine distinctiveness with descriptiveness. If successfully registered, either initially or after acquiring secondary mean­ ing, the same sign can be used both as a trademark and as a company or product name, allowing its different functions to converge. However, the availability of names with such multiple capabilities is finite, and greatly restricted by linguistic as well as legal considerations.19

Trademark Signs and Different Kinds of Use The second way trademarks are “name-like” signs, rather than being (or not being) straightforward names, concerns “use on the market”. Such specialist use forms an essential condition of whether a sign is functioning as a tra­ demark at all. This boundary can have a major impact on allegations of, and defenses available against, infringement. Shifts between alternative ways of using a registered trademark which are simultaneously and continuously available may be less obvious than other aspects of how trademarks func­ tion, such as their acquired distinctiveness or loss of registration resulting from generic use, but they are also important. Legally, as stated above, not all uses of a mark constitute use as a trademark. Other uses, known broadly as “referential”, are concerned with a trademark as the commercial source of particular goods without purporting to be that source. Such reference can be made without infringement. The precise boundary between authorized and impermissible uses of a mark is settled by the courts on the facts of each case, guided by legislation and established authorities on interpretation. Stripped of detail, the broad distinctions among different possible situations of use we now offer are, in some cases, only approximate, but they may serve as a guide. Use of a mark in commerce by the trademark proprietor to identify the source of goods in a class for which the mark is registered is prototypical, protected use. Use by others, in commerce, of the same or a similar mark in relation to identical or similar goods is an infringing use. Use in commerce of a trademark with an established reputation by a third party may constitute infringement even if there is no consumer confusion; in such circumstances, infringing use includes use of the same or a similar mark on goods irrespective

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of their class, if the use of the sign takes advantage of the earlier trademark’s reputation or is detrimental to its distinctive character or repute, diluting its distinctiveness or tarnishing its image. A number of further, more nuanced uses are also distinguished. Use by spare-parts suppliers, third-party repairers, and re-sellers to “name” (i.e., refer to) goods associated with a registered mark is not infringing, if such use is necessary either to indicate a product’s intended purpose or interoperability, or to advertise the re-sale of trademarked products. Use by an individual trader (formerly also a corporation) of his or her own name will not be infringing provided such use is in accordance with honest practices in industrial or commercial matters as defined by the courts, even if this results in some degree of confusion. Some other uses may also enjoy limited exceptions (e.g., use to provide information in connection with the sale of goods or services, or to create satire or parody, or in comparative advertising). Crucially, these uses are all in the course of trade. Beyond trade uses, which are the type of communication that trademark law seeks to regulate, use of trademarks by social actors other than their proprietor will normally be referential or “nominative”, and not infringing. Even so, generic use of a registered mark in everyday discourse, while outside a commercial context, may nevertheless attract a “cease and desist” letter from a trademark owner. Such proprietary action seeks to mitigate risk to the mark’s continuing registration. To many, such action conflicts with language users’ presump­ tion that they can name things informally however they wish. Restriction of such use also gives rise to (often exaggerated) notions of efforts being made by the trademark proprietor to gain private outright ownership of lan­ guage—a phenomenon sometimes described as the “propertization” of language.

Brand Names As discussed above, name-like signs such as trademarks can be difficult to conceptualize within an established framework of names and naming. The difficulties they present are compounded where nuance and complexity are further obscured by use of the final category-term to be discussed in this chapter. “Brand name” is not a legal term-of-art, like “trademark”, and there is no agreed definition of the term. However, its widespread use elides differences outlined above among name types, name-like signs, and what names denote, replacing such distinctions with an imprecise but now highly influential category. The distance between “brand” and a prototypical name is considerable. In fact, “brand” is scarcely a kind of name at all except when used elliptically for “brand name” (i.e., the name for a brand, with “brand” itself being what the name is the name of). “Brand”, in effect, is a “meaning” aspect of a sign. From a trademark perspective, it is what is conveyed by the trademark (or combination of marks) when, through promotion and use, the mark has acquired significance over and above its core “badge of origin” function. In

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such circumstances, courts have recognized that the mark serves functions beyond acting as a badge of origin. Enhanced by advertising, investment, and associations based on consumer experience, the trademark has also gained functions including those known as communication, investment, and advertisement.20 These functions overlap with the recognized role of a brand, but that does not mean that a trademark equals a brand. Rather, the brand is a signposted destination: a repository of accumulated impressions and feelings prompted by the brand name and whatever goods are associated with it. These include experiences and stories that the name has become imbued with as well as name loyalty. Taken together, this repository amounts to a particular type and degree of reputation (e.g., for reliability, luxury, trendsetting, customer service, innovativeness, and so on). This is such an extraordinary reversal in the evolution of the intangible conception of “brand” from commercial naming that it is worth recalling why a brand cannot be reduced to more concrete entities. Firstly, the brand cannot consist, or not only consist, of named goods, because it may com­ prise different classes of goods unified only by their common brand (or applied branding). The brand can also be extended to include additional types of goods, whether similar or different, so long as those goods are given the brand “treatment”. Like trademarks, a brand can also be sold from one commercial undertaking to another, with or without any physical assets; such transferability between owners means that a brand, like a trademark, is not reducible to any one commercial undertaking responsible for the pro­ duction, supply, and/or quality of particular goods (be it a company, con­ glomerate, or founding entrepreneur). Successive legal owners may take different approaches to brand oversight and might alter or discontinue pro­ duct lines without altering the brand, including products on which the brand reputation was founded. Like a trademark, a brand indicates commercial “source” or “origin” for the branded goods. But unlike a trademark, where the consumer’s putative relationship to the mark is understood to be rational, in that a guarantee of the quality of goods is sought by purchasing on the basis of origin, with a brand the consumer’s relationship is typically “non-rational” or “emotional”, prompted by the sign rather than attached to prior experience of the goods. The brand’s “identity” consists of meanings and associations; while these are linked to the trademark, they are subjective and go far beyond choice signaled by the mark’s function of distinguishing between alternative offerings. Interesting consequences follow from seeing brands as separate from any particular undertaking, product, or “source” that serves as a signifier of consistent origin. The question arises, for example, of who creates the brand’s content. Some elements are curated by the proprietor, through investment, advertising, and strategic market positioning. Others are created or extended by the brand’s consumers, for example by their statements of loyalty and enthusiasm in online chat groups, personal stories, and (authentic or engineered) consumer campaigns.21 The brand develops based

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on an overall pattern of how the brand name and associated marketing materials are used, and how goods associated with those materials are received and positioned. In addition, it is not only how the brand name is used or talked about that is important, but also by whom. This may be especially true now, given the consumer impact of social media endorsers and influencers. The brand is also exposed to being damaged, however, by hostile or dismissive use of the name or by activity such as brand boycotts. Such brand depreciation happened, for example, following public criticism of the putative relationship between Nike and sweatshops. Brand cultivation and communication are, in this way, a matter of co-production between proprietor and consumer; and to this extent brand names, in the form of trademarks, are signs of dialogue rather than signs with fixed meaning. Their intangible and elusive referent, a cultural representation beyond company or product, has itself also become a product. The main marketing developments through which the transformation of prototypical names into brands bearing brand names became possible should be mentioned. Perhaps the most important development conceptually is that brand content has become transferrable, extending brand value from one set of products to another by transferring the credibility and reputation of the brand and applying its characteristics and customer loyalty to a new range of products. For example, the Virgin brand is now attached to air­ lines, books, and casinos. By contrast, trademarks, understood more nar­ rowly as badges of origin, are unable to transfer consumer loyalty in this way because consumer loyalty in relation to trademarks as traditionally conceived attaches to the product mediated by the trademark rather than to the meaning or resonance conveyed by the trademark itself. Extension and transfer of brand value have also increasingly separated the idea of a brand from tangible production, locating it instead in intangible characteristics. This has not only allowed extension of one brand to many different kinds of products, but also made possible the use of different forms of branding in relation to the same product, such that an identical product appeals to different segments of an overall market for different reasons. Wider adoption of the concept of brand as intangible value vested in meanings and associations conveyed by one or a cluster of trademarks also depends for its modern flexibility on developments in trademark protection. These permit a combination of distinctiveness, referential indeterminacy of the trademark’s signified “source”, and evocative power. The resulting irre­ ducibility of the trademark source to a particular company, line of products, or mode of production and distribution has encouraged the perception of brands as autonomous from products of any particular type. This shift makes brand an intangible component of what is purchased over and above whatever it is attached to. In turn, an increasingly popular kind of brand name has facilitated this conception: brand names which are abstract and not closely anchored in anything that sounds like a product, organization, or sector. An example here is the name Facebook being superseded by Meta.

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Finally, and most strikingly, a brand, insofar as it approximates to a name, appears almost the linguistic inverse of a prototypical name, at least on the model of names introduced at the beginning of this chapter as signs denoting a specific referent but having no meaning. Brand names, in contrast, seek to be as “meaningful” or evocative as possible, even though what they refer to is intangible, without clearly delineated content or boundaries. When names create or identify brands, they function more like “symbols”. “Symbol”, of course, can be understood in different ways, ranging from special written characters, mathematical signs, or icons, through to signs laden with rich but vague cultural meaning, as in the case of a culture’s myths, traditions, rituals, or fashions. Like symbols in this latter sense, brands convey incomplete and perplexing concepts: “identities for things” not fully understandable but invit­ ing personal affiliation and holding out a possibility of distinguishing different consumer tastes, signaling social group membership, and expressing consumer aspirations. The brand names of “name brands” offer gratification by triggering selective and sometimes expensive consumption in response to their evocative capability outlined above; and the success of brands is supported by their names in ways that go far beyond serving as badges of commercial origin or identifying a unique or category referent.

Conclusions This chapter has suggested that the field of “names used in commerce” consists of different but intersecting areas and concerns, which fit only awkwardly into any single scholarly framework. This is, in part, because modern use of commercial names has absorbed and proliferated name-like signs which go beyond customary or intuitive naming principles. Some of these kinds of “name” must conform to legal term-of-art specifications, as regards technical properties, use, and effects; others are symbolic signs capable of being highly affective and influential on cultural values and attitudes. Many, we have suggested, are arguably both. Understanding how the new symbolic rhetoric of such “names” works, including its relation to earlier orders of names, calls for cross-disciplinary dialogue. In legal discussion of commercial names, analysis is compartmentalized within already given legal categories provided by legislation or developed in case law. Legal proceedings in a given area decide only disputes as presented to them, so issues are addressed largely in isolation; and legal reasoning must stay within terms and concepts of the applicable law in order to avoid falling into error. If, on the other hand, discussion begins more broadly, exploring how names work in general, parsing meanings and exploring affinities or contrasts with names in other contexts, wider questions are raised but with little connection to commercial or legal implications. For their part, marketers view commercial naming primarily as a creative, professional activity and seek to maximize competitive advantage; their professional motivation is to exploit rather than analyze elasticity in names and what any chosen name

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makes possible. To better understand these different perspectives, and the relations between them, interdisciplinary efforts are needed to understand the complex functioning of names used in commerce. A first aim of such work must be to identify differences of perspective, translating between and reflecting on divergent terminology and its consequences. Beyond questions of disciplinary aims and methods will then follow a greater challenge: relating names used in commerce to their social functions and effects, not narrowly just as names, but as verbal devices which both create and regulate social relations and identities.

Notes 1 For a collection of brief primary sources in philosophy addressing questions of meaning and reference in relation to “names” broadly understood, see Moore (1993). A recent analysis of “singular expressions” including proper names, defi­ nite descriptions, and indexicals or demonstratives, presenting clear exposition of the positions of Mill, Russell, and Kripke alluded to here, is Bochner (2021). 2 A wide-ranging and authoritative anthology of approaches in the onomastic study of names is Hough (2016). 3 For an insider account of the work of naming consultancies, see Taylor (2007). 4 In UK law, the Companies Act 2006, Part 5, chapters 1–6, sets out the law with regard to company names. Similar arrangements pertain in other jurisdictions. 5 Updated and extended requirements regarding the form and use of commercial names in the UK can be found in the Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015 (SI2015/17). 6 The MHRA Guidelines for the Naming of Medicinal Products and Braille Requirements for Name on Label Rules (2019) govern the naming of medicines (and cosmetics) in the UK. Many medicines have multiple names to facilitate communication with general and specialist audiences: a general, descriptive name; a scientific name; and a sales name. The last of these is often invented. 7 UK statutory instrument No.1499, the Food Labelling Regulations 1996, sections 6–10, prescribes rules governing legally required names, customary names, and, in the absence of either, the use of sufficiently precise descriptions for foodstuffs. 8 The resulting montage of names, labelling, slogans, taglines, titles, and straplines typically consists of juxtaposed single words, phrases, and short sections of text. Such composite material prompts a range of conceptual and affective responses and can serve functions ranging from conventional advertising through product placement to sponsor referencing. “Naming” elements in the mix of commercial strategies are protected legally in different ways and potentially to different extents. For discussion in relation to copyright and trademarks, see Durant and Davis (2012). 9 For discussion of the place of “commercial speech” in an overall framework of freedom of expression, see Barendt (2005). 10 The EU’s overall framework governing misleading advertising is the Misleading and Comparative Advertising Directive (2006/114/EC). As regards comparative advertising, an area considered a legitimate means of informing consumers in permitted circumstances rather than misleading them, but of concern because of the use of competitor names or trademarks, Directive 2006/114/EC updates the Comparative Advertising Directive (97/55/EC); the 2006 Directive is given effect in UK law by the Business Protection from Misleading Marketing Regulations 2008 (SI No. 1276). Art 3a of the 2006 Directive is closely followed in the UK

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14 15 16 17 18 19 20

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Regulations and lays down the main conditions for use of competitor names and marks. These include: that use should not create confusion between the adver­ tiser’s own trademarks, trade names, or other distinguishing marks and those of a competitor; that it should not discredit or denigrate a competitor’s names or marks; and that it should not take unfair advantage of their reputation. Trademark protection is determined by a combination of national, regional and international legislation. Derived from the WTO (the World Trade Organization), the TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) sets out standards of minimum protection to be implemented in national or regional trademark protection, and incorporates provisions from the Paris Conven­ tion for the Protection of Industrial Property, 1883 (as amended 1979). In the EU (European Union), trademark law is governed by Directive 2015/2436, which approximates the laws of Member States. In the United States, trademark law is governed by a combination of the federal Lanham (Trademark) Act enacted in 1946, codified at 15 U.S.C. 1051 et seq. (15 U.S.C. ch. 22), along with laws passed by individual states. In this chapter examples are drawn from UK, European, and US law. For detailed exposition, see Aplin and Davis (2022); Bently et al. (2022). EU Trademark Directive 2015/2436, art 3 states that, “A trade mark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours [sic], the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of: (a) distinguishing the goods or services of one undertaking from those of other undertakings; (b) being repre­ sented on the register in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor”. On challenges associated with the legal concept of the “average consumer” as the basis for judging a sign’s distinctiveness, and hence its capacity to act as a badge of origin in relation to goods and services against which it is registered, see Davis (2015; 2005). “Absolute” grounds for refusal of registration are stated in EU Trademark Directive, 2015/2436, art. 4. “Relative” grounds for refusal of registration are stated in EU Trademark Directive 2015/2436, art. 5. Art 5(3)(a) protects trademarks with a reputation against injury from third parties. Abercrombie & Fitch Co. v. Hunting World Inc., 537 F.2d 4, 9–11 (2nd Cir. 1976). The Proctor & Gamble Co. v. Office for Harmonisation in the Internal Market (OHIM). (C-383/99 P), EU:C:2001:461; [2001] ECR I-6251. EU Trademark Directive 2015/2436, art 4(c). US scholars Barton Beebe and Jeanne Fromer (2018) have presented detailed empirical evidence suggesting that a serious shortage of prospective trademarks is likely in future as regards suitable verbal signs. Damage to those functions, if the public associates a later sign with an earlier registered mark, is protected against infringement. “Dilution” results from blurring of a mark’s distinctiveness, such that it no longer creates the exclusive association for which it is registered and used in relation to particular goods. “Tarnishment” results from the goods on which an infringing sign is used creating unfavorable associations which lessen the protected mark’s attractiveness. “Free-riding” typi­ cally occurs where an infringing mark or sign takes unfair advantage of the dis­ tinctive character or repute of a registered trademark, exploiting that reputation in order to free-ride on the protected mark’s coattails. See Aplin and Davis (2022); Bently et al. (2022). An interdisciplinary collection of essays on connections, over­ lap, and differences between trademarks and brands is Bently, Davis, and Ginsburg (2008).

238

Alan Durant and Jennifer Davis

21 Some trademark scholars, notably Jessica Litman, have influentially drawn attention to the active role of consumers, alongside producers who invest in their trade symbols, in creating the mystique and value of brands in modern com­ merce; see Litman (1999).

References Aplin, Tanya and Jennifer Davis. 2022. Intellectual Property Law: Text, Cases, and Materials. 4th edition. Oxford: Oxford University Press. Barendt, Eric. 2005. Freedom of Speech. 2nd edition. Oxford: Oxford University Press. Beebe, Barton and Jeanne C. Fromer. 2018. “Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion and Congestion.” Harvard Law Review 131: 945–1045. https://harvardlawreview.org/2018/02/are-we-running-out-of-tradema rks/. Bently, L., B. Sherman, D. Gangjee, and P. Johnson. 2022. Intellectual Property Law. 6th edition. Oxford: Oxford University Press. Bently, Lionel, Jennifer Davis, and Jane C. Ginsburg. (eds.). 2008. Trade Marks and Brands: An Interdisciplinary Critique. Cambridge: Cambridge University Press. Bochner, Gregory. 2021. Naming and Indexicality. Cambridge: Cambridge University Press. Davis, Jennifer. 2015. “Revisiting the Average Consumer: An Uncertain Presence in European Trade Mark Law.” Intellectual Property Quarterly 1: 15–30. Davis, Jennifer. 2005. “Locating the Average Consumer: His Judicial Origins, Intellectual Influences and Current Role in European Trade Mark Law.” Intellectual Property Quarterly 2: 183–203. Durant, Alan and Jennifer Davis. 2011. “To Protect or Not to Protect? The Eligibility of Commercially-used Short Verbal Texts for Copyright and Trade Mark Protection.” Intellectual Property Quarterly 4: 345–370. Hough, Carole and Daria Izdebska. (eds.). 2016. A Handbook of Names and Naming. Oxford: Oxford University Press. Litman, Jessica. 1999. “Breakfast with Batman: The Public Interest in the Advertising Age.” Yale Law Journal 108, no. 7: 1717–1735. Moore, A. W. (ed.). 1993. Meaning and Reference. Oxford Readings in Philosophy. Oxford: Oxford University Press. Taylor, Neil. 2007. The Name of the Beast: The Process and Perils of Naming Products, Companies and Brands. London: Cyan Books and Marshall Cavendish.

Index

Page numbers in bold refer to tables. Page numbers followed by “n” refer to notes. abciximab 147 Abel, J. J. 142 Abercrombie & Fitch Co. v. Hunting World Inc. (1976) 229 absolute grounds 229 Acer rubrum 192 acetaminophen 147 acetanilide 144 acetylsalicylic acid (ASA) 144 acquired distinctiveness 230–231 adalimumab 147 Adams, M. 37–38 advertising 233; broadcast 152; comparative 236n10; direct-to-con­ sumer advertising (DTCA) 152–153; language 10 affiliative names 223 African Americans 70–73, 76, 80, 110 Age of Marriage Act (1929) 22 agricultural products, naming of 10–11, 127–129 Ainiala, T. 12 Alabama 56 Alaska 61 Aldara® 149 alemtuzumab 147 Algeo, J. 2 Algeo, K. 2 alias 4–5 Alito, S. 214 alkaloids 142 Allen, I. L. 210 Aloe 193 alopecia (circular hair-loss) 158 Alora® 149 alphabets 95; English 38, 41; Roman 191

alphanumeric names, of unnamed diseases 167 Alternative Questionnaire Experiment (AQE) 76 Amaryl® 150 American Birding Association 198 American Ornithological Society (AOS) 197–198 American Ornithologists’ Union (AOU) 198 amyotrophic lateral sclerosis (ALS) 164 Angell, M. 146 animal-based products, naming of 10–11 Anodonta cygneus 190 Anopthalmus hitleri 194–195 anthroponomastics 4 anthroponyms 70, 73–74, 75 antifebrin 144 antivenom 188 Aphyosemion roloffi 190 apoplexy (stroke) 158 applied toponymy: chronology of 92–94; standardization for 94–96; standardization for, challenges in 101–102; and State Name Authorities 96–101 Asher, R., Sir 176n4 Ashley, A. 23 Asperger, J. F. K. 165 Asperger syndrome 165 Aspirin® 144 associative meanings 9, 12, 38, 208, 225, 231 Aster alpinus 193 athletic teams 7, 9, 209; branding and fan identities 207–209; collective face 215–217; facing up to racist sports

240

Index

team names 218; Matal v. Tam and the Wild West of American sports team slurs 213–215; slurs and sports team names 209–213; see also sports teams Athos, J. 10–11

atropine 142

Australia 25, 102, 160, 171, 178, 189

Australopithecus africanus 191

autism spectrum disorder (ASD) 165

autonyms 77, 176

average consumers 130, 229, 237n13

Ayers, H. 102

Azaryahu, M. 111

Baby Dry case 230

Bach, K. 2

Bacillus anthracis 160

badger 187, 197

badges of origin 227–228, 232–233

Bamatter, F. 164–165

Bamatter-Franceschetti-Klein-Sierro

Syndrome 165

barbiturates 145

barbituric acid 144–145

Bauer, G. R. 64

Bayer, F. 144

Bayer company 144, 145

Bean v. Superior Ct 40

Beilschmiedia tawa 197

Benjamin, B. 108

Bernard, C. 141

Bernays, A. 1–2

Berne Convention 133

Bertillon Classification of Causes of Death 158–159 bias: institutionalized 177n12; (un)conscious physician 173

Biden, J. 81

Bikegila see do Bom Jesus, C. “Bikegila”

biological sex 53–54

biological species, naming of 186–201;

common names 197–201; eponymous names 194–197; introduction 186–187; naming as a creative act 192–193; scientific names for species 188–191; usability of a name 187–188 “Bird Names for Birds” 201

birth certificates 35; gender designations

on 52, 54–56; Matter of Anonymous

v. Weiner 59; Ray v. McCloud case 57–58; regulations for 36, 38–40; of TGD adults 59–60, 62–63 birth names 53

Black Americans see African Americans Blackwell, W. 21

do Bom Jesus, C. “Bikegila” 196

Bond, A. L. 201

Borkent, C. 194

Bornholm disease 166

borrowing words 210

Botanical Code 194–195 Boyd, T. 109

brand: boycotts 234; community 208–209; cultivation 234; depreciation 234; identity 208; names 11, 145–146, 150, 232–235; see also prescription drug naming, brand identity through branding 207–209, 225, 234; see also

misbranding

British Association for the Advancement

of Science 189

Brown, J. 40

Brown, P. 217

Brunell, T. 78

Buchheim, R. 141

Burger, W. E 71

Burkham, C. 10

business identity 206–210 Business Improvement Districts (BIDs) 113–115 Butler, J. 212

bynames 4

California 61

Camp, E. 211–212 Canada: gender-concordant identity documents (IDs) in 52; IDs for TGD adults, regulations for 62–63; marital last-name change in 25, 29n8–n9 Carace® 140

Carapichea ipecacuanha 143

Carpenter, K. 117

Cassis case 125–126 Castrén, A.-M. 25

categorical meanings 9, 12

Celebra® 150

Celebrex® 150

Celexa® 150

Cepollaro, B. 211–212 CF v. Alberta 62

Champagne 126–127, 134

Charcot, J.-M. 164

Charcot disease 164

Charter of Fundamental Rights of the

European Union 23

Check-list of North American Birds 197–198

Index choronyms 4

chosen names 39, 52–54, 59–60, 62, 114,

231, 235–236

Cinchona officinalis 142

cinchonine 142

cisgender 53

Civil Aviation Organization (CAO) 92

Clandestine Marriage Act (of 1753) 22

Clangula hyemalis 198

classification: binary sex 35; of cultural

composition of residents 70–71, 73,

77, 81, 83; of diseases 141, 158–159

clinico-anatomical method 141

codeine 142

codes, nomenclatural 187, 190, 191,

194–195, 197

cognitive frames 7, 11

cognitive schemata 7, 11

coleopterology (beetles) 3

collective face 215–217, 218

commemorative names, standardization

of 103

commercial names 221, 224–225, 228

commercial speech 227

commodification 206, 208–209 common names 131, 187–188, 190,

197–201, 222

communication 162

company names 151; administration of 225–226, 227; background of 221–224 compliance 168

compound names 98

computer-assisted data analysis (CADA) 6

conceptual proximity and geographical

indications of food names 130

Confinia Neurologica 164–165 conspecifics 2

consumer confusion 150, 228, 231

Corbett v. Corbett 23

corner cases 42

corporate identity see business identity Corrado, V. 128

cougar 187, 190, 197

coumarin 145

Council of Geographic Names

Authorities (COGNA) 94

couples 19, 22–28 Court of Justice of the European Union (CJEU) 125, 129–133 cross-cultural relationships and multicultural identity 70–72 cryptonyms 4

cultural property, toponomy as 116–120

241

cultural sub-populations 75

culture: cultural identifier 77; and

geographic naming 90, 95, 101; and

identity 71–73, 75–79, 81–83, 124;

maligning 167; and name change

19–20, 25; and naming of biological

species 192–193, 196–197, 201; and

psychological sense of gender 53; see

also Indigenous peoples (US);

multiculturalism and official names

and naming in US

Cunningham, A. 197

customary names 124

Cuvier, G. 195

cyclosporine 143

Danaus plexippus (monarch butterfly) 197

Danesi, M. 208

Dart, R. 191

deadnames 53–54, 63

DeAngelo, J. J. 4–5 de Candolle, A. P. 189

deed poll method 24–25, 29n7 Defense of Marriage Act (DOMA) 23

Delaware 56

de Lacroix, F. B. de S. 157–158 demography 6, 111

Derosne, L.-C. 143

descriptive names 124, 165, 192

descriptive signs 230

designations of origin 126, 132, 133

Desmognathus adatsihi 197

de Villemain, J. N. 142

diacritics, names with 36, 40

Diagnostic and Statistical Manual

(DSM) 159

dicoumarol 145

dilution 237n20 dipterology (flies) 3

diseases and naming see unnamed diseases (UND), naming direct-to-consumer advertising (DTCA) 152–153 diverse identities see transgender and gender diverse (TGD) identities, laws and policies regulating diversity index 81

Division of Medication Error Prevention

and Analysis (DMEPA) 149

Doha Mandate 134

Dolan, P. 8

Donohue, J. 149

Dreser, H. 144

Driver, R. J. 201

242

Index

drugs: approval 145, 148, 149, 152–153;

patent 145, 148–149

duck, long-tailed 198, 200

Dutchen, S. 140

dye industry 144

eBird 198

Ebola hemorrhagic fever 166

edge cases 42

Eichner, C. J. 20

elixir sulfanilamide 149

EMA (European Medicines Agency) 152

Emens, E. 36, 43

emetine 143

emotive meanings 9

endangered species 187, 188

endonyms 92–93

England 21, 22, 24; see also United

Kingdom (UK)

English common law 24

Entomological Societies of America

(ESA) 198

Entomological Societies of Canada

(ESC) 198

entomologists 3

epinephrine 142

eponymous names 176n6, 194–197

ethnic identity/ethnicity 69, 70, 72–76,

77, 78, 81, 82, 83, 111, 214; see also

neighborhood naming and law

ethnonyms 4

etymological practices in species

naming 192

European Commission 145

European Convention on Human

Rights 23

European Union (EU): Habitat Directive 188; legal protection for food names 129–131; protection of food names 124–127; quality schemes for agricultural products and foodstuffs 127–129 Eurosta solidaginis 193

Every Life Foundation for Rare

Diseases 170

exonyms 5, 92–93

experimental pharmacology 141

extinct species 186

faces 215–217

Facebook 234

face-threatening acts (FTAs) 216–217, 218

families: identity 26; names 19–20

Farb, J. 44

Farr, W. 27, 158

Federally Recognized Indian Tribe List

Act 101

feminism 26, 28

feta cheese, PDO for 131–133 Finland 25

First Amendment 10, 214

first names 4

Fischer, E. 145

Fleming, A. 143

Food and Drug Administration (FDA)

141, 151

Food Drug and Cosmetic Act (FDCA) 149

food: information regulation 124; labels

123, 124; products 9, 124

food names and geographic indications (GIs) 123–135; agricultural products and foodstuffs 127–129; EU Law on 124–125; EU protection of 125–127; generic food names 131–133; global protection for geographical food names 133–134; introduction 123–124; legal protection for 129–131 forensic onomastics 4

form designs and names 35–45; design­ ing forms 41–44; introduction 35–37; law of forms 44–45; law of names 37–41 Franceschetti, A. 164–165 Freedom of Information Act 80

free speech 10, 213

Frege, G. 223

Friedrich Bayer & Company 143

full names 4

Gahl, W. 175

Gehrig, L. 163–164 gender: designations on state-issued

identity documents 55; expression 53;

nonconforming 53; as term 53

gender-affirmation: defined 53; surgery, need for 56–57 gender affirming medical care (GAMC) 53

gender-concordant identity documents

(IDs) 51–52, 54, 64

gender identity: defined 53; documents 64–65; misrepresentation of 35–37; see also transgender and gender diverse (TGD) identities, laws and policies regulating Gender Recognition Act (of 2004) 23

gender-related terms, definitions of 52–54 General Agreement on Tariffs and

Trade (GATT) 134

Index generic names 131–133, 146, 147

genus 142, 145, 186, 188, 189, 191, 193

Geographical Names Board 92

geographic indications (GIs) see food names and geographic indications (GIs) geographic names and naming 90–104; of biological species 192; chronology of applied toponymy 92–94; com­ memorative names, standardization of 103; concepts of standardization 90–91; geographic names, standardi­ zation of 94–96; indigenous names, standardization of 101–102; of unnamed diseases 166; US Board on geographic names 96–101 geography-based anthroponyms 77

Geroderma osteodysplastica 165

gerrymandering 78

geteronormativity 29n10 GlaxoSmithKline (GSK) 146

Glaxo Wellcome 146

Goffman, E. 215–217, 218

Golden State Killer 5

Gonzalez-Cameron, A. 45

Google Books 199–200 Gorgonzola 126, 129

Graham-Cumming, J. 43

Great Britain see United Kingdom (UK) Greek origin, food items of 132–133 Guibourt, N. 145

H1n1 167

Habitat Directive (EU) 188

habitat of biological species, and

naming 193

Hagen, A. 44

Health Insurance Portability and

Accountability Act (HIPAA) 159

Heard, S. B. 200

heartsink patient 175n3 Heerz lukenatcha 193

Hendra virus disease 166

heparin 143

heroin 142–143 heterosexual 19, 21, 23, 24, 25, 27–28

Hill, B. 64

Hirschman, C. 73

Hispanics 70, 71, 73, 75, 76, 77, 80–81

hodonyms 4

Hoffman, F. 144

Homo naledi 191, 196–197 Homo sapiens 189, 191

Hooke, R. 160

243

Hough, C. 1

Human Rights Act 23

Hunter, M. 170

husband’s name/surname 20–22, 24–27

hydronyms 4

hypodescent 73

identity: brand 208; business 206–210;

and culture 71–73, 75–79, 81–83, 124,

208; ethnic identity/ethnicity 69, 70,

72–76, 77, 78, 81, 82, 83, 111, 214;

family 26; official 51, 55; personal 51,

81; racial 72–76; self-identity 12,

26–27; social 20, 26, 222, 236; see also

prescription drug naming, brand

identity through; transgender and

gender diverse (TGD) identities, laws

and policies regulating

Identity Documents Center of the

National Center for Transgender

Equality (NCTE) 55

identity documents (IDs) 31, 55, 64–65

illness and naming see unnamed diseases (UND), naming imipramine 143

Indigenous languages: scientific names in 196–197; standardization of 101–102 Indigenous peoples (US) 117, 119, 206,

209–210, 214–218

-ine suffix 142

insectology 3

insects 193, 196, 198

Institute for Safe Medication Practices

(ISMP) 149

insulin 143

intellectual property rights 125, 133

Interaction Ritual: Essays on

Face-to-Face Behavior (Goffman) 215

International Code of Botanical

Nomenclature 189

International Commission on Zoological

Nomenclature 194

International Congress of Onomastic

Sciences (ICOS) 92

International Nonproprietary Name

(INN) 146–148, 150

International Statistical Classification of

Diseases, Injuries, and Causes of

Death (ICD) 158–159, 170, 172,

176n9

International Undiagnosed Disease

Network (UDNI) 161

International Union of Pure and Applied

Chemistry (IUPAC) 146

244

Index

intersex individuals, and governmental form design 35–36 Investigational New Drug Application

(IND) 148

Jaffery, Z. 44

Janssen, Z. 160

Japan, marital last-name changes in 25–26 Jenkins, H. 208

Jews 28n3 Johnson, H. 109

Jones, R. 27, 144

Jung, J. 188

JusticeTrans 62

Kadmon, N. 110

Kaplan, J. 1–2

Karet, G. 147

Katyal, S. 117

Keller-Williams Realty 108

Kennedy, J. F. 103

Klein, D. 164–165

Ko, A. J. 37

Koch, R. 160

Korlym 148

Kripke, S. 223

K. v. Health Division 59

language: and law 6–12; policies and geographical names 95–96; propertization of 232; see also Indigenous languages Lanham Act of 1946 213

Larsen, M. D. 41

Larson, C. F. W. 39

Lassa fever 166

last names see surnames Latinx communities 167

laudatory names 225, 230

legal identity and governmental forms see form designs and names legal names 4, 7, 21, 37, 44, 58, 63–64,

124, 227

lepidopterologists 3

Leptomorphus mandelai 194, 195–196 Levinson, S. C. 217

linguistic and legal aspects of names: background 221–224; brand names 232–235; commercial names 224–225; company names 225–226; introduction 221; legal “term-of-art” names 227; product and service names 226–227; trademarks 227–228; trademarks as

“name-like” signs 229–231; trademark signs and different kinds of use 231–232 linguistic universal 104

Link, K. P. 145

Linnaeus, C. 158, 188–189, 190, 201

lisinopril 140

literature, scientific 164, 190

local governments, role in neighborhood naming 112–116 Locey, K. J. 186

long COVID 172

longspur, McCown’s 200

longspur, thick-billed 200

long-tailed duck 200

Lou Gehrig’s disease 163–164 Loving v. the State of Virginia 71

Luminal® 145

Lymantria dispar 198

Lyme disease 166

Lynch disease 169

Machado disease 160

Magendie, F. 141

maiden names 43

Malarone® 150

Mandela, N. 194

Māori 102

marital surnames, male domination

over 21

marketing 114, 126, 134, 149, 151–153,

208, 225, 227, 234

Marks, E. 170

marriage 19–22; legal aspects of 22–23;

keeping own name 27–28, 40, 232;

license 22, 23; name changing laws

and customs after 24–26; reasons for

name changing after 26–28

Marriage Act of 1836 22

Marriage (Same Sex Couples) Act of

2013 23, 24

married names 22–28 Matal v. Tam 213–215, 217, 218

Matrimonial Causes Act of 1973 23

Matter of Anonymous v. Weiner 59, 60

McCown, J. 198

McKinley, W. 102

meat products, labeling of 10–11 Medabon 148

medically unexplained chronic

multi-system diseases (MUCMI) 175

medically unexplained disease (MUD) 169

medically unexplained symptoms

(MUS) 169

Index medical statistics 158

melittology (bees) 3

men, name changing by 20

Merck, A. 140

Merian, M. S. 195

Meta 234

me-too drugs 146

Mexican flu 167

Middle Eastern Respiratory

Syndrome 166

middle names 4, 58

Mifabon 148

Mifegyne® 148

Mifeprex 148

Mifeprin 148

mifepristone 147, 148

Mill, J. S. 223

Mini mum 193

Mink, P. 21

misbranding 141

Misko, A. 171

Missouri 60–61 mixed-race peoples 73

morphine 142

Motamedi, J. 43

moth, gypsy 198

moth, spongy 199, 200

Movement Advancement Project

(MAP) 55

multiculturalism and official names and naming in US 69–83; Census (1950–1980) 70–72; Census (1990–2000) 72–76; Census (2020) 76–79; conclusion 82–83; multicultural America, birth of 69–70 multiracial ethnicity 74, 77, 81

Munchausen disorder 162

Munchausen syndrome 176n4 Murray, C. 109

Mycobacterium tuberculosis 160

Myolastan® 151

myrmecology (ants) 3

name(s): formal regulation of 37–44; and self-identity 12; usability of 187–188 name-bearers 2, 9

name changes 194–195, 218; laws and customs 24–26; by men 21; on official IDs, regulations for 58–63; reasons for 26–28 name-givers 211

naming: architecture 226; choices and law 6–12, 37–41; conventions, history

245

of 20–21; as a creative act 192–193; laws for married women 19–20 Napoleonic Code of Law 21

narcotine 143

National Academies of Sciences,

Engineering, and Medicine

(NASEM) 80

National Content Test (NCT) 76

Native American Graves Protection and

Repatriation Act 117

Nebraska 61

Negrea-Busuioc, E. 207–208 Negro, M. 21

neighborhood associations 115

Neighborhood Integrity Act 108

neighborhood naming and law 107–121; case studies in law and toponomy 107–111; introduction 107; law in the processes of contested toponomy 112–116; toponomy as cultural property 116–121 neologisms 224

Neonal® 145

New Drug Application (NDA) 148

nicknames 4–5, 103, 207–209, 211

Nicolaisen, W. H. F. 6

Nicotiana tabacum 142

NIH Undiagnosed Diseases Network 175

Nike 234

nonbinary 53

Northern Ireland 22

Nosologia methodica (de Sauvages de Lacroix) 157–158 nosology 158

Nuessel, F. 209

Nunberg, G. 212, 215

nutrition declarations 135n1 Nyström 7

Obama, B. 9, 76

Obergefell v. Hodges 23

O’Dowd, T. 175n3 official group names 82

official identity 51, 55

official names and naming, administrative challenges in US 69–83; Census (1950–1980) 70–72; Census (1990–2000) 72–76; Census (2020) 76–82; conclusion 82–83; multicultural America, birth of 69–70 Ohio 57–58 Oklahoma 56

Omsk Hemorrhagic Fever 166

onomasticians 3, 5, 6

246

Index

onomastics: concept of 1–2; methods and approaches 5–6; sub-division 3–4 opaque names 223, 229 opportunistic registrations (of company name) 226 Organization of American States (OAS) 94 Ormrod, R. 23 oronyms 4 orphan drugs 148 ostension 222 Östman, J.-O. 12 Otiothops casobus 193 Otus bikegila 196 Pan American Institute of Geography and History (PAIGH) 94 paracetamol 147 Paris Convention for the Protection of Industrial Property 133 Parma ham 131 pasta 126 Pasteur, L. 160 patient empowerment 153 patriarchy 21, 25, 26 patrilineal familial lines, adoption of surnames from 19–28; introduction 19–20; marriage, legal aspects of 22–23; name changing, reasons for 26–28; name changing laws and customs 24–26; naming conventions, history of 20–22 patronymic naming conventions 19 Patterson, C. J. 27 Paxlovid® 150 PDO see protected designation of origin (PDO) pejorative names 7, 96, 100, 109, 168, 211 penicillin 143 Penicillium rubens 143 Percocet® 150 Percocet Povidone 150 Perez, A. 73 Permanent Committee on Geographical Names (PCGN) 92 personal identity 51, 81 personal names 36, 38, 40, 53–54, 59, 82, 118, 224 Pfizer 144 pharmaceutical companies 140–141, 144, 145–146, 148–149, 150, 152–152; see also prescription drug naming, brand identity through

pharmacology, history of 141–146 philosophy of naming 95, 97–98, 224 phenobarbital 145 Phonetic and Orthographic Computer Analysis (POCA) 149 physiological products 143 Pizarro, F. 195 Pizza Napoletana 127 placenames (toponomastics) 4 place naming, and the legal system: conflicts 107; vignettes 107–110 Platygomphus benritarum 196 poisoning 187 Poser, B. 214–215 post-coronavirus disease 170–173 post COVID-19 condition (PCC) 172 Powers, J. 164 prescription drug naming, brand identity through 140–153; introduction 140–141; prescription drug names (PDNs), FDA’s best practices in developing 149–152; prescription drug names (PDNs), history of 141–146; prescription drug names (PDNs), types of 146–149 Prewitt, K. 77 Principle of Priority 190, 194, 195, 196 Proctor & Gamble Co v Office for Harmonisation in the Internal Market (OHIM) see Baby Dry case product names 127, 140, 150, 221, 226–227 proper names 2–3 propertization of language 232 protected designation of origin (PDO) 126–128, 129, 131, 132, 133 protected geographical indication (PGI) 126–128, 131; see also food names and geographic indications (GIs) Prozac® see prescription drug naming, brand identity through pseudonyms 4 psychological distress among TGD adults 51 Pure Food and Drugs Act (PFDA) 149 Quakers 28n3 Quebec 25, 54, 63 quinine 142 Rabies lyssavirus 160 race 69, 70, 72, 75, 76, 77, 78, 82, 83, 111, 214 race and naming conflicts 119–120; see also neighborhood naming and law

Index racial anthroponyms 73–74 racial ethnonyms 76–81 racial identity 72–76 racism 206–207; in disease-naming 167; in naming neighborhood-based groups 119–120; in names of sports team 7–9, 218; see also slurs Radin, P. 117 Ramirez, R. 75 Rare Diseases Act 175 Ray v. McCloud 57 Razadyne® 150 RCherokee 117 Re: Feldhaus, 2017 59–60 Redskins (team name) 206, 207, 209, 213, 214–215, 217–218 registration of names 124 relative grounds 229 Reminyl® 150 Respect for Marriage bill 23 Restar, A. 64 restrictive covenants (RCs) 115–116 Rhynchophanes mccownii 198 Rift Valley Fever 166 Riley, A. 117 Robiquet, P. 143 Robnett, R. 27 Rocky Mountain spotted fever 166 Roloff, E. 190 Rosa brachycarpa 191 Rosa californica 191 Rosa greenei 191 rose 191 Rose-Redwood, R. 110–111 Roussel-Uclaf (RU) 146 RU 486 147 Rydberg, P. A. 190–191 Salerno, F. 128 salicin 142 same-sex couples 24, 25, 27–28 Same Sex Couples Act of 2013 23, 24 same-sex marriage 22–23 Santamaria, S. 190 Scheibel, O. 194 Schmiedeberg, O. 141–142 Schwann, T. 143 Scientific Integrity Task Force 81 scientific names 187, 188–191, 193, 195, 196–198, 200, 201 Scotch Whisky 126, 130 Scotch Whisky v. Klotz 130 Scotland 22 secretin 143

247

secret names 4 self-identity of women, and marital name change 26–27 semiotic resources 208, 224, 228 sequelae 176n10 Sertürner, F. 142 service names, and product names 226–227 sex markers 53 sex reassignment surgery 59, 62–63 Sierro, A. 164–165 signature contact calls/whistles 2 Simion, D. L. 207–208 Singer, P. 165 Slants, The 214 slurs 198; Matal v. Tam 213–215; and sports 209–213 Small, A. 171 Smitherman, G. 210 SmithKline Beecham 146 snakes 187–188 social identity 20, 26, 222, 236 Some Other Race (SOR) 72, 75, 77, 81 Sotho language 196–197 species: endangered 187, 188; extinct 186 spellings, standardization of 99–100 spiders 193 Spinocerebellar Ataxia Type 3 (SCA3) 160–161 Spiraea ulmaria 144 sports teams 206–218; collective face 215–217; Matal v. Tam 213–215; names, branding, and fan identities 207–209; racist names of 218; and slurs 209–213 Statistical Policy Directive 15 70 statistics 25, 54, 69, 71, 72, 73, 77, 78, 158–159 Stepney, R. 140 Stone, L. 20, 21 Strickland, H. E. 189 structural stigmatization 65 suicide among TGD adults 51 Supreme Court of the United States (SCOTUS) 206, 213 surnames 4, 20, 21, 24, 27, 42, 43; changing 40, 42, 43; of a child after parents’ remarriage 59; of immigrants 38, 44–45; inherited familial 37; institutional names after 164; male domination over marital 21; naming diseases after 164; see also patrilineal familial lines, adoption of surnames from

248

Index

SWAN UK 173 swine flu 166–167 symbols 3, 19, 39, 41, 151, 213, 217, 226, 345 Symptoms Without a Name (SWAN) 169 Synder, D. 7 synthetic drugs 150 Takamine, J.-k. 142 Tam, S. 214 tarnishment 237n20 Tennessee 55–56 Termipil 148 TGD see transgender and gender diverse (TGD) identities, laws and policies regulating Thunberga greta 193 Tibbot, S. 10 Tofurky® 10 toponomastics 4 toponymy and law: case studies in 107–111; introduction 107; in the processes of contested toponomy 112–116; toponomy as cultural property 116–120; see also applied toponymy trademark law and corporate naming 206–218; collective face 215–217; facing up to racist sports team names 218; introduction 206–207; Matal v. Tam 213–215; slurs and sports team names 209–213; sports team names, branding, and fan identities 207–209 trademarks 227–228; as “name-like” signs 229–231; protection 237n11; registry 227; signs and different kinds of use 231–232 Trademark Trial and Appeal Board (TTAB) 213 trade names 145, 225–226 Trade-Related Aspects of Intellectual Property Rights (TRIPS) 134, 237n11 Traditional Specialities Guaranteed (TSG) 127–128 traditions, and name change 26–28; see also culture transgender and gender diverse (TGD) identities, laws and policies regulating 51–65; affirmation through identity documents 64–65; demographic information 54; gender-related terms, definitions of 52–54; introduction 51–52; regulations for name changes on official IDs 58–63; US federal and state policies 55–58

transparent names 223, 230 transsexual 53 Treaty on the Functioning of the European Union (TFEU) 125, 135n10 Treponema pallidum 167 Treuer, A. 217 Troglomyces twitteri 190 Trump, D. 77–78, 79–80 trust 162 Truth in Labeling Law 10 Tsalagi 197 Tyson, D. 108 UK Wildlife and Countryside Act 188 Underwood, C. R. 27 United Kingdom (UK) 21; legal aspects of marriage in 22–23; marital last-name change in 24–25 United Nations Group of Experts on Geographical Names (UNGEGN) 92, 93, 94, 95, 97–98; indigenous names and 101–102; standardization of discrepancies 97–99; standardization of geographic names and 95–96 United States: history of personal name conventions in 20–22; legal aspects of marriage in 23; marital last-name change in 24; official IDs for TGD adults, regulations for gender declaration on 55–58; official IDs for TGD adults, regulations for name changes for 58–61; see also multiculturalism and official names and naming in US; neighborhood naming and law; specific aspects/types United States Adopted Name (USAN) 150 United States Adopted Names Council (USANC) 147–148 United States Patent and Trademark Office (USPTO) 214 unnamed diseases (UND), naming 157–175; basic strategies of 163–168; diagnosis and dismissal 161–163; International Statistical Classification of Diseases, Injuries, and Causes of Death (ICD) 157–159; introduction 157; post-coronavirus disease 170–173; understanding 160–161; variation and discord in 168–170 U Nonimmigrant Status (U visa) 47n17 US Board on Geographic Names (USBGN) 92; commemorative names, standardization of 103; establishment of 92, 96; geographic names,

Index standardization of 94–96; indigenous language, standardization of 101–102; role of 96–101 US Bureau of Census 69, 78

US Citizen and Immigration Services 44

US Constitution 71

US Endangered Species Act of 1973 188

US Public Law 104–191 159

US State Department 35, 36, 45

Van Leeuwenhoek, A. 160

Vargas, A. 79

Veronal® 145

Vinca rosea 143

vincristine 143

Virgin brand 234

von Baeyer, A. 144–145

von Mering, J. 145

W3C Internationalization Working

Group 41

Wales 22, 24; see also United

Kingdom (UK)

Wardrop-Guillain-Barré-Landry-Strohl

Syndrome 165

Warfarin® 145

we-ness 208–211, 213, 218

Weskott, J. F. 144

West Nile Fever (WNF) 166

Wheeler, T. 194

wives 20, 21, 23–25, 27

Wilson, R. 12, 20

249

Windsor v. United States 23

Wisconsin Alumni Research Foundation

(WARF) 145

Witvliet, M. G. 172

Wöhler, F. 144

women: marriage and name change 19,

21–28; in scientific naming 196; post

COVID-19 condition (PCC) in

172–173; transgender 54

World Intellectual Property

Organization (WIPO) 133–134, 148

World Professional Association of

Transgender Health (WPATH)

Standards of Care, Version 8

(SOC-8) 53

World Trade Organization (WTO) 125,

129, 134

worms 193

Wright, A. 142–143

XY v. Ontario 62

Yang, J. 79

Yersin, A. 160

Yoon, S. Y. 44

Young, S. 82

Zeneca 140

Zestril® 140

Zoni case 126

Zoological Code 194–195

Zzyym, D. 35–37, 40, 43, 45n1