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Tuesday, 18 November 2008

IPKat rage over ECJ language issue

STOP PRESS: thanks for the huge response to this plea. Apart from Chris McLeod, who posted an explanation of the ruling below, I've had helpful emails from Veronica Barresi, Andrew Maggs, Cristina Garrigues and Nathan Wajsman -- and the translations and explanations continue to flow in even as I write. Many, many thanks, all of you; it shows that we IP enthusiasts really are a community, even if we may disagree, compete, complain about each other etc etc ..

This morning the Court of Justice of the European Communities posted the Opinion of the Advocate General in a reference for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) in Case C-497/07 Silberquelle GmbH v Maselli-Strickmode GmbH.

Right: this is not a picture of the IPKat in a rage -- it's a picture of him struggling with those Latvian consonants.

The question referred is a slightly curious one:

"Are Articles 10(1) and 12(1) of ... Council Directive 89/104 ... to be interpreted as meaning that a trade mark is being put to genuine use if it is used for goods (here: alcohol-free drinks) which the proprietor of the trade mark gives, free of charge, to purchasers of his other goods (here: textiles) after conclusion of the purchase contract?"
The Advocate General obviously takes the question seriously because his Opinion is 58 paragraphs in length, replete with footnoted sources, and the IPKat would dearly like to tell you all about it -- but he can't. At the time of posting this blog, the Opinion is available in just eight official languages of the European Union -- Spanish, German, Italian, Latvian, Dutch, Portuguese, Finnish and Swedish. Here's his recommendation to the court, in Latvian:
"Padomes 1988. gada 21. decembra Pirmās direktīvas 89/104/EEK, ar ko tuvina dalībvalstu tiesību aktus attiecībā uz preču zīmēm, 10. panta 1. punkts un 12. panta 1. punkts jāinterpretē tādējādi, ka preču zīme netiek faktiski izmantota, ja to izmanto, lai apzīmētu nealkoholiskos dzērienus, ko preču zīmes īpašnieks saviem klientiem piedāvā bez maksas par viņa tirgoto tekstilpreču nopirkšanu".
The IPKat is enraged by the failure of the Curia to provide translations in French and English -- two languages that are very extensively used by businesses based outside the European Union and which are constantly assured that the EU offers a good, pro-competitive and business-friendly commercial environment in which to trade. Lack of money isn't an excuse. The EU has vast amounts to waste on trivial and inessential activities. Merpel adds, it's also infuriating that the Office for Harmonisation in the Internal Market has been forced to sit on mountains of cash, wrongfully taken from weath-generating users of the trade mark system, and this money can't be used instantly for the training of translators who can make Court of Justice and Court of First Instance decisions available in a wider selection of official languages.

As in the past, if anyone can put the IPKat out of his misery by giving him a clue as to what this is all about, he'd be hugely grateful.

10 comments:

Anonymous said...

poor jeremy!!!
we (as non "English mother tongue" normal and insignificant European citizens) don't complain when judgments or opinions are available in English or other language but our own language.
Why don't you complain in that case?????
is it a case of "double standard"?

Chris McLeod said...

I have skipped to the final paragraph which concludes that a mark is not put to genuine use if it is used in relation to non-alcoholic drinks which the trade mark owner gives free of charge to customers purchasing textiles from it, after a purchase has been made.

Jeremy said...

Dear anonymous,
I assume from your comment that you didn't spot the fact that, when I complained, I actually listed French ahead of English even though both my personal preference and alphabetical order would suggest the reverse. I'm happy to support the principle that legal documents of this nature be translated into all European languages that are generally used in the course of commerce, as I have said in the past.
My other languages are Latin (moderate), Classical Greek (very rusty), Biblical Hebrew (rarely useful for ECJ rulings) and Aramaic (ditto), so if materials are not available in English, schoolboy French or elementary Italian, I'm doomed ...

Hastings Guise said...

I concede that it might not be practicable to translate every decision into all official EU languages.

However, as a bare minimum they could at least manage to cover all five OHIM working languages (French, German, English, Italian, Spanish).

It is tricky enough working in a pentalingual jurisdiction but when half the case-law we are expected to apply is incomprensible it creates a pretty unbalanced legal process. You could almost say there's something reminiscent of Kafka's "Trial" about having your mark dismissed on the basis of decisions you can't understand...

Anonymous said...

Parties have the judgment written in the so called "language of procedure" they have chosen. Therefore, they do understand the case.

Anonymous said...

A hint of the common law/civil law divide perhaps, in those last two comments. If the parties can understand, isn't that enough? Why should anybody else be interested? After all, there is no Binding Precedent.

Anonymous said...

From outside of Fortress Europe, it sometimes looks like you have built a Tower of Babel - and at times even a Tower of Babble.

Hastings Guise said...

In view of the comments of Anonymouses (anonymice?) 1 and 2:

ECJ decisions don't bind the ECJ itself, but they do effectively bind the decision-making of the OHIM first instance decisions and the OHIM Board of Appeal.

OHIM or an adverse part can, in the context of Italian-language proceedings for example, cite ECJ/CFI decisions which are not available in Italian.

In order to respond you need to examine and distinguish authorities which you cannot understand (at least, in their official version) -- hence Kafka-esque.

twr57 said...

Further evidence that Latin should become the sole official language of the EU...

Anonymous said...

The only thing that stops English being the sole language of proceedings at supra-national level in the EU is that two Member States have it as their first language. Some people think this gives those two States an unfair advantage. In fact, the opposite is true. When everybody involved in a debate is using English as a foreign language, everybody follows. When one participant speaks in English as first language, it's all too fuzzy for the listeners, and they don't really understand. So the English native speaker is disadvantaged. So, it would be conceivable for the EU to settle on an "only English" language regime, happy in the knowledge that those Member States which would be most disadvantaged are those with English as their official language.

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