When a client engages in a marketing campaign directed at foreign language-speaking consumers, new slogans and terms will often be used in association with the company’s products or services. When this occurs, as was discussed in a previous legal translation blog post, a company typically applies for a copyright of the foreign language term. However, without a proper print and written translation into the languages of the non-English-speaking consumers, a copyright petition for a foreign language term may be denied if the term, as used in the foreign language, is considered generic.
If a copyright is challenged, the legal issue comes down to the foreign language translation of the applied for term. When arguing either for or against a foreign language term, one needs to present evidence as to the foreign language translation. This foreign language translation evidence is typically either translated by a human foreign language translator, or represents a computer-generated foreign language translation.
Although in many areas of the law, computer-generated foreign language translations are questionable in terms of accuracy, when used for a foreign language translation of a single term or slogan, the courts have held Internet evidence admissible for purposes of evaluating a trademark. Retail Serv., Inc. v. Freebies Publ’g, 364 F.3d 535, 544 – 45 (4th Cir. 2004); Savin Corp. v. Savin Group, 391 F.3d 439, 454 (2d Cir. 2004).
However, the courts have also held “the weight given to this evidence must be carefully evaluated” and “definitions available from an online resource…must be capable of being verified”. In re Red Bull GmbH, 78 U.S.P.Q.2d 1375, 1377 (TTAB 2006). In light of this, when a foreign language term is used in a particular marketing campaign, its perceived meaning will often be different than its dictionary meaning. The only way to offer evidence as to this difference is by using a professional foreign language translator personally familiar with the culture of the foreign language-speaking consumer.
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