‘Soft IP’ and identity: Why language matters

For some, the rhyme “sticks and stones may break my bones but words will never hurt me” may be recalled as a familiar, even reassuring, ode to childhood resilience.

But for others, no soothing refrain—no matter how you say or sing it—can alter the fact that words do have a devastating power to injure, undermine and confuse. And when it comes to promoting diversity and inclusion (D&I), this impact can be vastly underestimated.

For transgender IP lawyer and civil rights activist, DJ Healey, partner at Spencer Fane, words in the form of gender pronouns are of paramount significance—and fundamental to her sense of identity.

“When someone meets me in person and refers to me as ‘sir’, it is degrading since I try to make my presentation as ‘female’ as possible,” she explains.

In recent years Healey has spoken in interviews with WIPR about the devastating effects of realising, aged four, that she was trapped in the wrong body—before finally gaining the confidence to transition from David to Danielle five decades later.

This is why, she explains, pronouns are so pivotal for people like her, as well as other marginalised groups.

“When speaking with me in person, using the honorific ‘sir’ ignores my efforts to be who I am, and disregards my identity. The speaker is labelling me according to how they see me or want to deal with me, or as a deliberate put-down.”

“When you draw that distinction between hard and soft IP, it suggests that there is a lack of rigour inherent in copyright and trademark law.” - Amanda Levendowski, Georgetown University Law Center

In her experience, many lawyers and judges “do try to address colleagues and counsel with pronouns that match the apparent gender identity of the person they are speaking with”.

But unfortunately, not all are as enlightened. “Sadly, some federal and state judges have been known to refer to trans people by their birth sex pronouns, which opposes the idea that justice should be blind to a person’s class, race, religion, sexual preference and gender identity,” observes Healey.

“In this situation any trans person would feel a judge is prejudiced against them since they have ignored their core identity or, worse, signalled that they will not accept it in their court.”

Microaggressions

The challenges posed by words, phrases and certain terminology extend beyond pronoun usage, and can entrench and foster bias and prejudice in subtle ways.

Tackling such issues has been a lifelong passion for Tony Mildon—the founder of a diversity and inclusion consultancy—who was diagnosed with spinal muscular atrophy at birth.

During his tenure as a project manager at the BBC, he came out as gay and later went on to help develop the organisation’s D&I programme.

He now helps organisations to identify the issues that can arise when employees are careless, or downright cavalier, in the way they speak.

“When we get our language spectacularly wrong, we can discriminate, we can cause great offence to people,” he explains.

While a homophobic slur is an extreme example of aggressive language, Mildon argues that, in reality, problems happen “on a day-to-day basis with the seemingly small misuse of language”.

Such instances, he explains, can be categorised as ‘microaggressions’—verbal, behavioural or environmental slights, whether intentional or unintentional, that communicate hostile, derogatory, or negative attitudes toward stigmatised or culturally marginalised groups.

These linguistic attacks, he warns, can become even more insidious if they are dismissed as “mere workplace banter”.

Citing examples, Mildon argues that pejorative language that celebrates toxic masculinity,  and/or which denigrates the LGBTQ+ community, can snake its way into office chit chat.

“Phrases I’ve heard in professional services organisations include: ‘you have to man up’. Or ‘he has to grow some balls’, and I’ve come across others saying ‘oh that’s really gay’ when dismissing something. This does occur in modern day workplaces, unfortunately.”

Mildon explains such microaggressions can leave people “feeling alienated, left out, unvalued and disrespected”.

“And ultimately, that leads to all sorts of issues, including with productivity, retention, staff turnover or attrition. For individuals, it can often lead to self confidence issues, mental health problems and low self-worth,” he adds.

Soft IP

Sometimes, certain terms and words can become so ingrained in professional sectors that few question their origins or implications.

Take the term ‘soft IP’, which is still commonly used—perhaps most frequently in the US and Asia—to refer to trademarks and copyright.

But such usage is deeply problematic, according to Amanda Levendowski, associate professor of law at Georgetown University Law Center in Washington, DC.

According to Levendowski— who is writing a paper exploring why the term is inherently sexist— ‘soft IP’ is a misnomer for a plethora of reasons.

“When you draw that distinction between hard and soft IP, it suggests that there is a lack of rigour inherent in copyright and trademark law that just doesn’t bear out in practice.”

“Some organisations might refer to everybody who’s not white, as BAME, an acronym for Black, Asian, minority, ethnic. That’s not great because it’s lumping everyone together.” - Tony Mildon, D&I expert

She points to the complex issues at stake in Warhol v Goldsmith and Jack Daniel’s v VIP Products, both landmark copyright and trademark cases respectively that dominated headlines this year.

“These huge cases asked critical questions about the boundaries of copyright and trademark law. Ultimately, there are no meaningful conceptual, doctrinal, historical, operational, definitional or practical reasons as to why trademarks and copyright are considered soft [when compared to patents].”

She didn’t always hold this view, however.

Levendowski recounts how as a student she unthinkingly wrote that she was interested in ‘soft IP’ in a blog, and was shocked when the article prompted Eric Goldman, professor of law at Santa Clara University School of Law, to reach out to her.

Ambient messages

He advised her to discard the term in future, because it was problematic, had little conceptual value, and was inherently sexist.

For Levendowski, this intervention was a major turning point prompting her to reevaluate her use of language.

It dawned on her that she had subconsciously accepted “an ambient message that was floating around law school”, that the real IP lawyers, ie, patent lawyers, “would think I was a silly little girl who didn’t know my own limitations” if she described herself as an IP lawyer.

Fast forward a decade later and the term ‘soft IP’ is still very much in parlance, prompting Levendowski to take action and conduct her own research into the term.

“Every year I get emails from students who ask about my ‘soft IP’ practice.

“And before we get into the nitty gritty of what I actually do, I write back and say: ‘let’s take a second and unpack why that term is a huge problem’.”

Why, she asks them, is copyright and trademark law considered soft? And the reason, she argues, has little to do with doctrine, and everything to do with the fact that these disciplines tend to attract higher numbers of women, when compared to patents.

“And women”, she says, “have always been associated with softness”.

In many ways, she observes, softness can be interpreted in a positive way, as it implies “flexibility and adaptability”. But, Levendowski insists, it is rarely used to connote such advantages in law.

“I’ve never heard anyone use the term ‘soft IP’, because they’re celebrating its resilience, flexibility or support.”

The origins of the term are nebulous, but Goldman suggested in a 2013 article, Let’s stop using the term ‘soft IP’, that it may have emerged in the late 1990s.

Levendowski is aware of the challenges in dismantling a term that has gained such traction over the past three decades.

“It’s hard to break the habit of using a term that you think everyone is using to make a meaningful distinction, when, in fact, the distinction is not meaningful, it’s not useful.”

When “problematic terms such as ‘soft IP’ creep into practice”, she continues, they “reinforce the bias and prejudices” that hinder long overdue progress.

“Women have been practising law since 1869, and we are still having the same problems we’ve always had.

“We are paid less, we are promoted less, and we are penalised more for parenting decisions when compared to our male counterparts .The profession is not doing enough to combat those implicit biases contained within certain terms.”

Such misuse of language, she continues, is a problem not just for women, but for all those in law firms who have been traditionally marginalised.

“If a firm is discriminating against women, then it probably has problems with equity across the board,” says Levendowski.

Mildon agrees that it can be deeply problematic when the wrong type of language becomes normalised, such as certain catch-all terms being used to categorise different groups of people.

“For instance, some organisations might refer to everybody who’s not white, as BAME, an acronym for Black, Asian, minority, ethnic. That’s not great because it’s lumping everyone together,” explains Mildon.

Indeed, the UK independent Commission on Race and Ethnic Disparities recommended scrapping the label as one of its “key proposals” in 2021, on the basis that the term can disguise huge differences between ethnic groups.

The commission, set up following the Black Lives Matter protests that year, found that the term ‘BAME’ is “outdated, unhelpful and redundant”, and should no longer be used by public bodies and companies.

Such examples, says Mildon, show that “sometimes we get it wrong”. But, he urges, it’s how we respond and react afterwards, that matters.

“So sometimes we can be afraid of saying or doing the wrong thing, and causing offence. That fear holds us back. And being held back isn’t helpful, and doesn’t help us create a more inclusive workplace.”

As Levendowski concludes: “Language does really matter. Thinking about my usage of terms radically changed how I perceive myself as a lawyer. And I think it did so for the better.”