The translation of foreign words in determining whether they are registrable as trademarks, or confusingly similar with existing marks is, certainly, a relevant matter in the Trademarks' Right. In this brief overview, we comment on its importance, giving special attention to the USPTO's doctrine of the foreign equivalents.
Language may create confusion on trademarks' registration, therefore, knowing the trademarks' foreign words equivalents is growing in importance for Trademark Offices, provided that through this linguistic analysis they are able to verify if the trademarks at stake lack on distinctiveness, not being, therefore, entitled to be registered, and to attest if they have been previously used on or registered for products or services which might reasonably be assumed to come from the same source.
Accordingly, the diversity in languages is, in its nature, a barrier that poses difficulties for trademarks' integration in the market and in the system's harmonization of the Trademark Offices on many levels. That is to say, without the knowledge of others' languages, as well as their culture and identity, the communication and trade sphere would be unintelligible.
To a certain extent, the differences in legal interpretations and methodologies adopted by the Trademark Offices in the examination of trademarks irrefutably promote monopolistic situations to the detriment of competitors and of the internal market as a whole and, eventually, create negative repercussions on free movement of goods and services.
Taking the above problems into account, which may arise in the future by the use of generic words as trademarks in a different language, a number of measures adopted by the Courts, that will guarantee steady expansion, balanced trade and fair competition, comes into picture. In this sense, initially, we intend to briefly comment on the European approach, and, then, on the United States doctrine of foreign equivalents.
The European Union has grown and counts with 24 different official languages, semi-official languages and over 100 regional, minority languages and dialects. Such a generous number of languages and language varieties is indeed a challenge for the Union's legislation, administration, judicial system, but also for the internal and international trade.
As a matter of fact, trademarks in the European Union are seen as a mechanism of economic competition. To that end, the legal protection of a trademark is considered a crucial...