Webster Loses Its Trademark
As Noah Webster was coming to be known as the Father of the American Dictionary, his name took on a life of its own.
Once Americans thought the name Webster to be synonymous with “the dictionary,” other dictionaries began to appear as “Webster’s.” The name began losing the distinctiveness that might have allowed it to serve as a trademark. In fact, it is now available to anyone who might create or publish a dictionary of any kind or quality. How, precisely, did this happen?
THE PASSING OF A COPYRIGHT
Noah Porter, ed. Webster’s International Dictionary of the English Language. Springfield, MA: G. & C. Merriam Co., 1890. Printing of 1894.
In 1889, the copyright protection in the 1847 edition of Webster’s American Dictionary expired, and it passed into the public domain. G. & C. Merriam Co. had worked mightily to improve the Webster brand, with significant revisions in 1864, 1879, and 1884. Then, in 1890, Merriam issued this “international” edition, which retailed for $12 to $15 per copy (wholesale $8 to $10). This became Merriam’s flagship dictionary. It was published simultaneously in London.
Ex coll. Karolyne & Bryan A. Garner. HHD no. 89
INGENIOUS MISREPRESENTATIONS FREELY MADE
Webster’s Unabridged Dictionary: The National Standard. [St. Louis: Holloway Pub. Co., 1889?].
Advertising brochure.
Almost immediately after the 1847 version lost copyright protection, George W. Ogilvie began producing cheap photolithographic copies, calling it the “Famous Edition” of Webster’s Unabridged Dictionary. He charged as little as $1.45. Merriam filed three lawsuits and won at best Pyrrhic victories up through 1892. Conceding that Ogilvie might have had a fraudulent intent, one court nevertheless declared the idea “nonsense” that Merriam had “special property” in the name Webster’s Dictionary. Although Ogilvie had made “free and ingenious use of misrepresentations,” the name Webster’s Dictionary was “unrestricted public property.”
Ex coll. Karolyne & Bryan A. Garner. HHD p. 355
IS THIS AUTHORISED . . . OR AUTHORIZED?
Webster’s Brief International Dictionary, abridged from Webster’s International Dictionary. London: George Bell & Sons, 1894.
Merriam licensed its London agent, the well-known London publisher George Bell & Sons, to issue a British abridgment of its 1890 flagship publication. (The same abridgment was published in the U.S. as Webster’s High School Dictionary.) The spine of this British book calls it the “authorised edition,” even though the entry for authorize records only the z spelling.
Ex coll. Karolyne & Bryan A. Garner. HHD pp. 360–61
THE AUDACITY OF OGILVIE
United Dictionary Co. v. G & C Merriam Co., 208 U.S. 260, 28 S. Ct. 290 (1908) (opinion by Holmes J.).
In 1904, George W. Ogilvie founded United Dictionary Company and created photolithographic plates of Webster’s Brief International Dictionary [no. 3]—with plans to sell it in the U.S. He tried to capitalize on a technicality: the British publication contained a U.K. copyright notice, but no U.S. notice. Ogilvie planned, in other words, to produce a pirated American edition of an authorized (!) British version of Merriam’s American book. A federal court enjoined him, and the U.S. Supreme Court affirmed, with an opinion by Justice Oliver Wendell Holmes.
Ex coll. Karolyne & Bryan A. Garner. HHD pp. 360–61
OGILVIE UNDAUNTED
Webster’s Imperial Dictionary of the English Language being the authentic unabridged dictionary by Noah Webster, LL.D. Chicago: George W. Ogilvie, 1907–1908.
For the first time, Ogilvie issued a Webster dictionary listing himself as publisher and showing copyright notices (1904, 1905, and 1907) in his name. Meanwhile, in advertisements, he shouted that only his book was authentically derived from the pen of Noah Webster. Ogilvie called the 17-year-old Merriam flagship dictionary “obsolescent, if not wholly obsolete.” In the journal School Education, he wrote: “If you want a dictionary, and not a ‘joke book,’ get Webster’s Imperial Dictionary.”
Ex coll. Karolyne & Bryan A. Garner. HHD pp. 362–63
OGILVIE EVADES AN INJUNCTION
New Websterian Dictionary Illustrated. New York: Syndicate Pub. Co., 1912.
Ogilvie’s Reliable Dictionary . . . by Noah Webster. Chicago: Saalfield Pub. Co., 1915.
In 1909, a federal court gave Merriam a victory by declaring that any “Webster’s dictionary” issued by Ogilvie or his successors must contain the following disclaimer on its title page: “This dictionary is not published by the original publishers of Webster’s Dictionary or by their successors.” With several dictionaries such as those displayed here, Ogilvie circumvented this requirement by not using the possessive form “Webster’s.”
Ex coll. Karolyne & Bryan A. Garner. HHD pp. 363–65
CONGRESSIONAL CROOK
Photograph of Congressman William A. Oldfield of Arkansas.
In 1914, Ogilvie pushed for federal legislation to allow anyone to publish Webster dictionaries with impunity. The corrupt Chair of the House Committee on Patents, William A. Oldfield, had the decisive vote. He suggested that either Merriam or Ogilvie should pay him $10,000 to make up his mind. Two Oldfield staffers swore under oath that they’d heard him say he could “pick up some easy money” this way. The bill was never enacted, and no corruption charges were pressed against Oldfield. But his dictionary-related venality roiled his reelection bids.
Ex coll. Karolyne & Bryan A. Garner. HHD p. 366
A HOODWINKED PUBLIC
Photograph of Judge Learned Hand of New York.
George W. Ogilvie asserted that in all the litigation over Webster dictionaries, Merriam had been “whipped, unqualifiedly and absolutely.” The trend continued when a case came before Judge Learned Hand in 1917. By now, Ogilvie had issued Webster dictionaries under a variety of names. Judge Hand wrote that although Ogilvie’s advertisements had a “shoddy appeal,” the law couldn’t prevent him from using Webster. Dismissing Merriam’s lawsuit against Ogilvie, Hand wrote: “We trust to the public to find out that they have been hoodwinked.”
Ex coll. Karolyne & Bryan A. Garner. HHD pp. 364–65
FAIR WARNING?
“Warning! When you say ‘Webster’s Dictionary’ you mean MERRIAM-Webster.” 1930s.
Advertisement.
Throughout the mid-20th century, Merriam’s public-relations campaign urged people to think of Merriam’s dictionaries as the only ones legitimately called Webster. Among the intelligentsia, it was largely successful. Yet it wasn’t quite correct to say that “in 1843, the G. & C. Merriam Company bought and paid for the exclusive rights to publish the only genuine Webster’s Dictionary.” Webster’s son, William G. Webster, and his son-in-law, William C. Fowler, were publishing legitimate Webster dictionaries with other publishers into the 1860s.
Ex coll. Karolyne & Bryan A. Garner. HHD p. 366
THE GHOST OF OGILVIE
An Interim Statement by the World Publishing Company on the right to use the name of Noah Webster in the title of dictionaries. Cleveland, OH: World Pub. Co., 1947.
Brochure.
Nineteen years after George W. Ogilvie’s death, and after nearly a decade of further litigation with Merriam, Ogilvie’s successor-in-interest, World Publishing, issued a four-page pamphlet that amounted to a victory lap: Merriam was enjoined against saying that it had “the exclusive right to use of the name ‘Webster’ in the title of dictionaries.”
Ex coll. Karolyne & Bryan A. Garner. HHD p. 369
SHORT-LIVED VICTORY
Random House Webster’s College Dictionary. New York: Random House, 1991.
Merriam Webster’s Collegiate Dictionary. 10th ed. Springfield, MA: Merriam-Webster, 1993.
The death knell came in litigation that involved not copyright or trademark law but “trade dress”: the likelihood of confusion caused by similarly named products (the words Webster’s plus College) with a similar appearance. In a 1994 federal trial, the jury assessed $2 million in damages against Random House—to be paid to Merriam-Webster. The trial judge increased it to $4 million. Three years later, on appeal, the Second Circuit nullified all damages, declaring that there was no likelihood of confusion and adding that Webster’s is utterly generic and unprotectable. Isn’t litigation fun?
Ex coll. Karolyne & Bryan A. Garner. HHD pp. 369–71
ALL DRESSED UP
Webster’s New World Dictionary: Third College Edition. New York: Macmillan, 1994.
Encarta Webster’s College Dictionary. New York: Bloomsbury, 2005. 2d ed.
More than a century after George W. Ogilvie began his onslaught against Merriam, his successors at Webster’s New World—the lineage back to Ogilvie is direct—remained the most formidable competition for the newly renamed Merriam-Webster. American publishers had come to believe that a successful American dictionary must (1) use Webster’s in the title, (2) likewise have College or Collegiate in the title, and (3) sport a bright red cover. What you see here is only a sampling. What do you think? Do you suppose that there was no likelihood of confusion among the American book-buying public?