The BBC reported on Monday 18th January that the American rock band Pearl Jam had sent a ’cease and desist’ letter to the British tribute act Pearl Jamm, requiring the latter to destroy merchandise and hand over web domains and email addresses.
Tribute bands often have names which – to use a musical term – riff on the names of the bands (or band members) they cover, but they are not usually so close to the original as to give rise to any confusion. There can be little doubt that The Pretend Pretenders, Pink Fraud, and Bjorn Again are not the real thing. Tribute bands also often tag ‘a tribute to …’ after their name to make sure they stay on the right side of the law.
The name Pearl Jamm, however would appear to be sufficiently close to the trademark Pearl Jam – and identical when spoken – as to constitute a potential intellectual property right infringement.
But why would the Seattle rock giants bother to litigate? Each tribute band would require a separate lawsuit and the cost of legal action would no doubt massively outweigh any damages recovered. After all, as one member of Pearl Jamm told the BBC, ‘No one’s ever come to a show, got to the end of a show, came to us and demanded money back because they were expecting Pearl Jam to play The Garage in Highbury [a small, little-known music venue in London].’
What’s more, lawyering up against the little guys isn’t exactly very rock ‘n’ roll, especially when the tribute band was formed out of love for the original rather than with the purpose of simply cashing in.
Sometimes the mere threat of legal action, as well as being cheaper, is enough to persuade the copycats to ‘cease and desist’ or at least to change their name.
Legal Language Focus
Doublets and triplets
A common accusation made against traditional legal writing is that it is redundant, i.e., that words are used when they don’t need to be. One manifestation of this is the use of doublets like cease and desist and triplets like alienate, transfer and convey.
One explanation commonly advanced for doublets and triplets is that they reflect the various linguistic influences which have contributed to the English language as it has developed through the centuries, particularly French, Latin, and Germanic languages.
Another more cynical explanation is that it didn’t hurt lawyers to use more words, since they were often paid by the page. Prolixity was profitable!
Of course, it’s also true that it’s important to be comprehensive; some concepts can’t be expressed with just one word. The individual words in some doublets and triplets have different shades of meaning. For example, assault and battery are often found in partnership, but they are not interchangeable; battery always constitutes an assault, but an assault is not always a battery. Battery involves physical contact, whereas an assault can be committed where a victim is simply put in fear of an immediate physical attack.
Often, however, the words are identical in meaning, or one word can be subsumed by the other. Furthermore, because they are usually relics of archaic English, they can sound pompous and anachronistic. Here are just three examples.
- Cease and desist
The Shorter Oxford English Dictionary (SOED) tells us that cease means ‘…stop, leave off, desist, discontinue’ and that desist means ‘cease, stop, forbear…refrain, abstain’.
Both cease and desist are formal, rarely-used, old-fashioned words meaning stop. You will probably never hear somebody telling you to ‘cease smoking’ or ‘desist from smoking’. Especially if you a non-smoker.
- Null and void
This is an example of a pairing deriving from different languages, null from the Latin nullus and void from the Old French voide (modern form: vide).
SOED states that null means ‘Of no legal or binding force; void, invalid’ and that void means to ‘make legally…invalid,… annul’.
The terms are therefore interchangeable. The contract is null or the contract is void suffices.
Contrast these with the time-honoured ‘The contract is null and void and of absolutely no effect whatsoever’. (Or, as they say in America, ‘zero, zip, zilch, nada.)
- Give, devise and bequeath
You might read this expression in somebody’s last will and testament. (Another unnecessary pairing; will suffices).
SOED tells us that to devise means ‘the action of bequeathing’ and that to bequeath is ‘to leave to a person by will’. From this it seems clear that if you ’give’ something to somebody in a will, you don’t need to ‘devise’ or ‘bequeath’ it.
The last word on the subject, as so often, goes to Bryan A. Garner (Legal Writing in Plain English, p.43):
To avoid needless repetition, apply this rule: if one word swallows the meaning of other words, use that word alone. To put it scientifically, if one term names a genus of which the other terms are merely species – and if the genus word supplies the appropriate level of generality – then use the genus word only. And if the two words are simply synonyms (convey and transport), simply choose the one that fits best in your context.
Legal Language exercise
Complete the common legal ‘doublets’:
- _______________ and conditions.
- Fixtures and _________________.
- Suffer or ____________________.
- ______________and enjoyment.
- Rules and ___________________.
- Starsky and _______________ .
Try producing some redundant writing – it doesn’t have to be legal. You’ll often find you’re using language of different origins. Latin contributes nearly 50% of English words.
He gave me a cordial (Latin), hearty (Germanic), joyous (Latin via Old French) welcome.
He was incarcerated (Latin) in a London jail (American English, from Latin via Old French).
She struck the intruder (Latin) in anger (Old Norse) and in rage (Latin via Old French).
They dedicated their lives to fighting (Germanic) and combatting (Latin) the mobsters (Latin) and the mafia (Arabic via Italian).