Linguistic laughs -- an expert writes

The IPKat's venerable and learned friend Dr Alexander von Mühlendahl is a man whose experiences both as Vice-President of OHIM and as an attorney in private practice have given him some precious insights into the linguistic problems that have beset Europe's Long March to harmonisation, the single market and a common understanding.

Right: the Verpiss-Dich plant, originally designated Coleus canina (presumably on account of its smell), is now thought to be a Plectranthus: see the IPKat note on Schrader v CPVO here

Prompted by David Keeling's recent post he tells the Kat:

"The laugh is certainly called for.

The original language of the Plectranthus case is German, and in that language all the terminology put on his pointed needle by David Keeling is indeed correct: the term in Article 7 of the Plant Variety Regulation is "Unterscheidbarkeit"; in the English it is "Distinctness" (English mother tongue/readers may know how to distinguish between distinctness, distinctivity, and distinctiveness). In French it should be -- the Article 7 term -- distinction, a term at times properly used in the French translation of the judgment (which may well be the original), but even there at times the "caractère distinctif" raises its head (e.g. in para. 25 of the judgment), while the proper term should have been "distinction".

The problem thus is one of proper translation, rather than sloppy language in the original. David, who in one of his past lives was at the ECJ's translation service, will know how difficult the task is.

Perhaps your readers may also chuckle at another translation "error":

The applicant in the case had claimed that the variety SUMCOL 01 for which protection was sought had already been marketed in the European Union in January 2001, under the designation "Verpiss Dich". A proper rendering in English would have been "Piss Off", but the translation service prissily chose "get lost" (in para. 12) (imagine the smell of the plant!)

As for the discretion that the CFI grants the CPVO, anything else would have come as a surprise, given the sometimes time-consuming and complicated examinations carried out by the CPVO and the participating national offices in determining stability, distinctness, novelty, etc. - it is difficult to imagine the CFI itself carrying out a re-examination or appointing experts to do so. Perhaps trade marks are indeed less complicated than plant varieties".

Plant samples here and here
Urine samples here and here
Why we love cat pee, but hate dog pee here
Thomas Bowdler here