A localized translation of trademarks, like slogans, may be a common step for many global companies. After all, with a saturated global market, it is likely that there will be competition not only in a business’ home country, but also across boarders. But where does the line get drawn for international IP protection – and how does this relate to the localization and translation services?
Localized Translation | How Do Localization & Translation Affect The Limit Of IP Protection?
Trademarked phrases and slogans for brands are nothing new. There’s L’Oreal’s “Because you’re worth it” Nike’s “Just do it”, and of course McDonalds’ “I’m lovin’ it”. Grammatical errors notwithstanding, the slogan of this famous burger chain is so catchy that in most countries it does not even make an attempt for a more localized translation of trademarks. In many cases however, companies will embark on a localization process of their marketing campaigns, in order to be more appealing and in-line with their new target markets. Although reserving native and localized slogans for business use is common, the trademarking of single words may not seem as normal. It is in fact possible to trademark a word for business purposes, with certain restrictions.
Specsavers, the biggest optical retail chain in the UK, has, this past August, trademarked the word should’ve and the alternative spelling shouldve. Although at first glance a vain attempt at “owning” a word, the company won their case most likely due to their intensive and long-running marketing campaign using the phrase “Should’ve gone to Specsavers”. This trademark of course will only apply to other optician services and goods, as well as auditory products due to their similarity.
There have been instances in the past of UK trademarks that have been much further reaching, like Sky-TV’s trademark of the word “sky” in the technology sector. In 2013 this trademark forced Microsoft to change the intended name of their cloud-based service from “Skydrive” to “Onedrive”. It also prevented the well-known chat service provider Skype from trademarking its own name.
But how can these very specific UK trademarks affect international patent law? While the UK has voted to leave the EU, the necessary article of the Lisbon treaty has so far not been invoked. Even when it is invoked, it will take two years for the separation process to be complete. Since the EU is currently made up of 28 different countries, with 24 official languages and several more working languages, the Court of Justice of the European Union often deals with trademark and copyright cases where localized translations of slogans clash with native companies already using similar or identical phrases and words.
Specsavers therefore may try to enforce their trademark not only on competitors in the UK, but also in other EU countries. However, this may not be so easy for them. In order for the trademark to take hold in a different language, there must be a chance for the average consumer to be confused as to which company or to which product certain trademarked words point to – and for this the Court of Justice of the EU has several checks.
One of these checks is of course, the verbatim localized translation, concerning well known words. Trademarks that contain simple words like red for example can more easily apply over several languages. Red is an easily translatable word that even novices of languages can recognize in the target language. On top of this phonetical and visual similarities can also be causes for trademark infringement. Taking a well-known trademark, like the German Gut, Besser, Gösser from the Gösser beer company and translating it into English Good, Better, [name of English beer company], would not only be problematic due to its word-for-word translation, but also for the aforementioned similarities. The words sound very similar to consumers in English and German, and overall have the same structure as the original slogan.
However the decision to grant Specsavers the trademark to such a common word is still shocking to many, especially as it marks an enormous precedent of a verb being trademarked. Experts are already predicting in more companies, in the UK at least, the trademarking of other common words. This would then have severe consequences for marketing in the respective fields, as each campaign and localized translation would need to be as different from one another as possible in order to avoid infringement. Still, it would seem that in the international market, Specsavers should’ve will only have a limited impact in other languages.
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