I have long wanted to publish this article that I wrote 14 years ago, when I worked as an intern at the Translation Service of the European Commission in Luxembourg. It was a very fruitful year, I learned a lot from my colleagues and boss, Josep Bonet, but they say that I also taught them a lot with my talk on Industrial Property. At that time, I had just finished my Master’s Degree in Patents, Trademarks, Designs and Copyrights at the University of Alicante and I knew very well the terminology problems faced by the translators of the European Commission, European Parliament, and above all, the Luxembourg TRANSLATION Center that translates for the OHIM, the Community Trademark and Design Registration Office located in Alicante, my city.

I leave you with this article, although I must tell you that from everything I am telling you, something has changed, and that is that for some years now there is no longer a distinction, terminologically speaking, between industrial designs and models, although there is a conceptual distinction. The Spanish has adopted its English mirror term “design” and now speaks of “diseño” to refer to “design”.

Peculiarities of industrial and intellectual property terminology

Industrial property rights are little known, as they are relatively modern and are boxed into a very specific area of commercial law which, in turn, is framed within private international law. In this brief space I will not be able to explain the content of the different laws with their added difficulties of English common law and Spanish common law, of Napoleonic influence, but I do hope to clarify some key concepts that will help the translator when he/she is confronted with them.

Industrial property or intellectual property?

The Patent Law¹ clearly indicates that industrial property titles refer solely and exclusively to industrial applications, and have nothing to do with intellectual property. Specifically, its first article states that “for the protection of industrial inventions, the following industrial property titles shall be granted, in accordance with the provisions of this Law: a) invention patents, and b) utility model protection certificates”.

However, sometimes we find the term “intellectual property” referred specifically to “industrial property”. In this case it is a term that would cover both industrial property and copyright. In short, for “industrial property” we would have two English words: industrial property and intellectual property, the use of which will depend on the precision we wish to achieve, and for “intellectual property”, copyright. Let it be very clear that in Spanish “intellectual” refers to “creations of the mind”, while “industrial” refers to “creations of form and objects”.

Industrial Property

Let us now go a little deeper into industrial property rights, which include patents, utility models, secret patents, trademarks, industrial designs, trade names, business signs, topographies of semiconductor products, plant varieties, deposit of microorganisms and appellations of origin. Among them, we will choose only those that present a significant problem when searching for their corresponding term in the English-Spanish duality. Let’s start with trademarks.

Mark: mark, trade mark, registered trade mark

Sometimes, we will come across the term “mark” as a general term to refer to what Law 32/98² in its article 1 defines as follows: “any sign or means that distinguishes or serves to distinguish in the market the goods or services of one person from the identical or similar goods or services of another person”. The Law itself distinguishes between “product mark” -mark or trade mark-[PowerPC® is a registered trade mark of IBM Corporation used under license (registered product mark)] and “servicemark” -servicemark-[IRIDIUM® is a registered trade mark and service mark of Iridium LLC (registered service mark)]. We must also bear in mind that the mark goes through several stages from its application to its granting. In the latter case the mark will be aregistered trade mark. Hence, sometimes and increasingly, we see the following symbols:

®: for registered trademark

™: for product trademark application

^SM: for service mark application.

We must also not forget that there are several types of trademarks depending on the holder of the right: individual,collective marks (collective marks or collective trade marks) andcertification marks. The latter are signs or means that certify the common characteristics, in particular the quality, components and origin, of the goods or services produced or distributed by persons duly authorized and controlled by the holder of the mark.

Well-known and well-known trademarks

Regarding the Community Trademark Regulation³I consider it appropriate to highlight two characteristic terms in which a translation error would lead the judge to issue an incorrect judgment, in the event of litigation where the degree of popularity of the mark would have to be demonstrated. Therefore, the concepts of “well-known trademark”(well known), i.e., the trademark known by consumers of the class of goods or services to which it is applied (for example, “Danone” in the food sector and more specifically of dairy products) and “renowned trademark”(renowned) or trademark known by different groups of consumers in different markets and not only within its group (for example, “Coca-Cola”) must be clearly understood.

Designs: designs or drawings and models?⁴

The terminology in this case has been clarified by Regulation 40/94, which specifies that we should not use “designs” but “designs and models” to refer to designs, when we speak of industrial property titles that protect ornamentations or fantasy shapes of products. Spanish legislation does not include this term as an industrial property title. The peculiarity of the English term designs is that it refers to both two-dimensional and three-dimensional shapes, whereas in Spanish there is a palpable difference in terminology: “dibujos” for the former and “modelos industriales” for the latter.

Patents and utility models

According to Article 4 of the Patent Law: “Patentable inventions are new inventions that involve an inventive step and are susceptible of industrial application“. The term “patent” finds its equivalent in English patent, while in the case of “utility model”, we would have a choice in common law between petty patent, utility model and utility patent. The fundamental difference between patent and utility model lies basically in the scope (international/national) and duration (20 years/10 years) of protection and in its inventive range (obvious/very obvious to the person skilled in the art). It should be pointed out that the utility model appears in Spanish law from German law(Gebrauchsmuster) and French law(petit patent, today certificat d’utilité) and that today it is the most common way used by Spanish entrepreneurs, a large proportion of whom belong to small and medium-sized companies.

Copyright ?

Nor is this last English term easy for the translator or terminologist, although the difficulty will depend on the source language. In Anglo-Saxon law we speak of copyright, while in French we use droit d’auteur. You are probably wondering what the difference is between the two. Once again, it depends on the lens through which you look at it: Anglo-Saxon laws that protect the rights of an author over his artistic, literary or scientific works are called copyright, while laws based on Napoleonic law use the term “author’s rights”, as in the case of Italian and Portuguese law, for example. It is worth mentioning the peculiarity of the French law, which is called “literary and artistic property”, apparently excluding scientific works. In Spanish⁵the terms intellectual property, literary and artistic property, author’s rights and copyright are nowadays considered synonymous.

Personally, I would also be careful with the plural of the term in Spanish and would say “derechos de autor”, and not “derecho de autor”, since it encompasses two types of rights for the owner of an original work: the “extra-patrimonial rights” or “moral rights”, of an inalienable, unrenounceable and in some cases imprescriptible nature and, on the other hand, the “patrimonial rights” which include those of exploitation and remuneration.

Copyright, accompanied by the © symbol, is found in all types of publications and is usually left in English. For example: “It is strictly forbidden, without the written authorization of thecopyrightholders….”.

In conclusion, it should be pointed out that the difficulty of translating all these terms is due to the fact that industrial and intellectual property rights are subject to different national legislations. Translators in general, and more specifically the translators of the different Community institutions and the Translation Center, have the important task of harmonizing this terminology.