13 Original Chinese used in Article 3 of the Common Program: “保護國家的公共財產和合作社的財 產，保護工人、農民、小資產階級和民族資產階級的經濟利益及其私有財產”
14 商標註冊暫行條例 in Chinese
17
example, it contains many single-character terms that are replaced by the same terms but with two or more characters in modern PRC Trademark Law, such as "已" rather
than "已經," "准" rather than "核准," "應" rather than "應當," and "合" rather than "
合理" or "合法.” In addition, no Roman numerals or Arabic numerals were used in the law (Standing Committee of the National People’s Congress, 1950).
The legislation which superseded the Temporary Provisions was the Regulations on Trademark Administration (“Regulations”), which was passed in 1963. The Regulations was a much leaner document, containing only fourteen articles while the legislation that it replaced contained thirty-four. As W. Liu (2014) notes, it also contained no language regarding the exclusive use to trademarks, only covering issues such as governance and regulations covering enterprises. Furthermore, because Article 7 of the Temporary Provisions contains language pertaining to same-day application while Article 10 of the Regulations does not, the discrepancy becomes wider. An example of two similar articles from each law is shown below:
Table 3
Article 2 the Temporary Provisions and the Regulations
Text of Article 2 of the
Temporary Provisions Text of Article 2 of the Regulations
18 Author's English
Translation
In general, a private or public factory, business or cooperative requires a special trademark for the for use in products that it produces, manufactures, processes or refines, shall, in accordance with these regulations, apply to the Central Private Enterprise Bureau, Finance and Economic Committee of the State Council for registration.
Enterprises using trademarks shall apply to Central Administration for the Management of Industry and Commerce for registration.
For the purposes of where a product does not use a trademark, the name of the enterprise shall, if necessary and possible, be clearly marked on the packaging of said product so as to simply the management thereof.
Table 4
Article 7 of the Temporary Provisions and Article 10 of the Regulations
Text of Article 7 of the
Temporary Provisions Text of Article 10
of the Regulations Comment 二人以上用相同或近
Second to last and last clauses of the
Temporary Provisions deal with a matter that is not covered in the
Where two or persons are using the same trademark and are using it for the same purpose, the first application shall be the one registered; where two applications are submitted on the same day, the first
application shall be the one registered. language used in the Regulations (especially
It would seem as though the law started completely anew because required that all trademarks registered under the “reactionary” KMT government be re-registered (Standing Committee of the National People’s Congress, 1950) yet there
19
are several inconsistencies in usage in the Temporary Provisions while there are none in the more plainly-worded Regulations or the current PRC Trademark Law indicating that this might not be the case. For example, both “已” and “已經” are used in the
Temporary Provisions while only “已經” was used afterwards (Standing Committee
of the National People’s Congress, 1950 & 2013). One need only look to the ROC Trademark Law of 1940 to understand why this might be the case. The wording of the Temporary Provisions on certain instances is slightly simplified but not in all
locations. The greatest divergence between the two laws is where there are slight changes written to reflect the nature of the new political system, such as those dealing with Communist Party Control; the content of the laws is basically the same
(Legislative Yuan, 1940; Standing Committee of the National People’s Congress, 1950).
Background: 1982 to Present
In 1978, two years after the death of Chairman Mao Zedong, China took a very different course politically and economically, choosing to “reform” and “open up” the country (McMahon & Zhou, Y., 2011). As a part of its national transition to a more open economy, the PRC began to look for ways in which it could update its laws (W. Lu, 2014; Luney, 1989). In 1981, the impetus for a change in the trademark system was written in the Chinese journal Legal Research15, which “indicated that the 1963 Regulations had been largely unsuccessful in promoting quality control due to the low incidence of use of registered trademarks by enterprises” (Wu-Ohlson, 1984, p. 112). This was exacerbated by the perverse incentive to meet quotas instead of create quality products, an issue which Wu-Ohlson (1984) notes required immediate
15 法學研究 in Chinese
20
ameliorative action once China began to open up to foreign trade. To this end, the 1982 Trademark Law, the first of its kind in the PRC, was promulgated. It was adopted in 1983 (W. Liu, 2014).
The PRC soon began to accede to international treaties. In 1985, the PRC acceded to the Paris Convention for the Protection of Industrial Property (W. Liu, 2014). However, it is notable that the PRC did not accept Article 28 of the Paris Convention, an article which deals with arbitration being overseen by the
International Court of Justice (WIPO, 1984). In 1995, the PRC acceded to the Madrid Agreement Concerning the International Registration of Marks (China Compulsory Certification, 2015). The PRC also signed the TRIPS Agreement16 in late 2001 (WIPO, n.d.).
Some of the aforementioned agreements served as the impetus for the PRC to update its trademark legislation so as to meet the requirements to become a party to those agreements. For example, in addition to adding language covering “service marks,” the 1993 Amendment to the PRC Trademark Law includes language which imposes harsh penalties on those found guilty of trademark infringement (Standing Committee of the National People’s Congress, 1993). Nevertheless, as Alford (1997) and Rees (2003) can attest, existing PRC law in the 1990s was insufficient to properly protect intellectual property. Upon joining the World Trade Organization and in order to fulfill the requirements of The Agreement on Trade-Related Aspects of Intellectual Property Rights, the PRC added a large number of provisions which became sufficient for the PRC to accede to that agreement (M. Wang, 2002). Thus, the 2001 amendment of the Trademark Law came about (M. Wang, 2002).
16 The Agreement on Trade-Related Aspects of Intellectual Property Rights
21
The most recent amendment to the Trademark Law was passed in 2013. This most recent amendment, and the focus of this study, adds language which goes into greater detail regarding appeals, penalties (Wang, J., & Zhang, Y., 2013). Shortly after the amendment went into effect, the Reinhold Cohn intellectual property law firm released an article praising the law as “good news” for foreign investors and an important step towards ridding itself of the “counterfeit haven” label as the law does much to combat trademark misappropriation (Reinhold Cohn Group, 2014).
22 CHAPTER III
EXAMPLES OF SIMILARITY AND DISSIMILARITY IN THE TRADEMARK LAW
The following chapter analyzes the syntactic similarity and dissimilarity between the original Chinese text as well as the English text of the PRC’s Trademark Law. The objective this chapter is find syntactic similarity between the text of PRC law and English law, not to prove that the language of the Trademark Law is somehow incorrect Chinese or that the law was influenced by English.
Introduction to Examples
What follows is the main body of this study. Most of this study involves the analysis of certain articles from the PRC Trademark Law at the phrase level. This entails that parts of clauses will be categorized as noun phrases, verb phrases, prepositional phrases, adjective phrases and adverb phrases, which is the standard used by Burton-Roberts (1986/2013), Berk (1999) and many other prominent scholars in the field of linguistics. Although in this case, the standard will be applied to the analysis of two languages rather than one. In situations where an individual word is not part of a phrase, that word will be analyzed at the word level. For example, the subject-predicate pair “商品必須申請” contains both a singular noun and a verb
phrase. As such, “商品” cannot be counted as a noun phrase while “必須申請” can be
counted as a verb phrase. There are cases in which phrases lay on different strata on a hypothetical syntax tree, however, the level at which these phrases lay in a subject-predicate pair is not within the scope of this study nor does it affect the result. In the
23
vein of the Transformational Insertion Hypothesis discussed by Dougherty (1970), singular noun phrases linked by coordinating conjunctions will be viewed as a combined noun phrase17.
Articles 3(2), 14(5), 16(1), 22, 29 and the first sentence of Article 6018 shall be analyzed at the phrases level according to the conditions listed above. A Chinese phrase will be considered “matching” if it is located in the same order as the English of the PKU translation. Furthermore, a phrase shall be analyzed based on the Chinese phrase type. This entails, for example, while the English translation of the Chinese phrase “可以要求”is “it may require,” because the Chinese phrase does not contain a
pronoun, the phrase will be deemed to be a verb phrase.
Example 1: Article 3(2).
The first object of study is Article 3, Paragraph 2 of the Trademark Law, which has been chosen as it is reflective of how concepts are introduced in the PRC Trademark Law. This paragraph introduces the definition of the term “collective mark” and is similar to the paragraph describing collective marks in 15 U.S. Code § 1127 - Construction and definitions; intent of chapter in terms of content, but not in terms of exact language, insofar as the latter contains specific language pertaining to
“use in commerce” (Trademark Act of 1946)19.
Below is a comparison between Article 3, Paragraph 2 of the Trademark Law and the relevant part of the US Code, followed by a phrase-level syntactic analysis of Article 3, Paragraph 2 of the Trademark Law:
17 For example, the phrase “he and she went to the park” could be “they went to the park” because “he and she” act as a single noun phrase which is associated with the same action (Berk, 1999).
18 The length of this article vis-à-vis the other articles made it necessary to cut the analysis down to the first sentence.
19 The specific section of the Trademark Law of 1946 cited in the US code is 15 U.S. Code § 1127 - Construction and definitions; intent of chapter in the US Code.
24
Table 1
Comparison Between Article 3, Paragraph 2 and the US Code
Trademark
Law-Chinese Trademark Law-English US Code- "Collective Mark"
本法所稱集體
For the purposes of this Law, “collective mark”
means a mark registered in the name of a group, an association, or any other organization for the members of the organization to use in commercial activities to indicate their
memberships in the organization.
The term “collective mark” means a trademark or service mark—
(1) used by the members of a cooperative, an association, or other collective group or organization, or (2) which such cooperative,
association, or other collective group or organization has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter, and includes marks indicating membership in a union, an
association, or other organization.
Table 2
Phrase-level Syntactic Analysis of Article 3, Paragraph 2
Original Text Unit PKU translation (Chinese Order)
PKU Translation
(Original Order) Match
本法 N For the purposes
25
the organization to indicate Yes (order maintained)
的標誌 N a mark their
memberships in the organization No
The English version of Article 3, Paragraph 2 clearly diverges syntactically from the Chinese text, but that cannot be said to be the entire analysis. The word which is being described, “標誌,” appears at the end of the sentence, which is not the
case in the English, in which the subordinate language would come after “mark”
(Zhong, 1997). This is because, according to Liu et al (1996) and Lu (2008), Chinese adjectives will precede the word that they modify. As for the PKU English translation, a phrase such as “a mark that is distinctive and easy to identify” would have to be translated in Chinese as “有顯著特徵、便於識別的商標,” because adjective phrases
in such situations must be postnominal in order to maintain a sense of formality (Berk 1999). What is somewhat confusing is that postnominal adjective phrases function as prepositional phrases, which is why they are listed as prepositional phrases in the table above. By extension, given how 的-modified phrases can have the same effect
26
that postnominal modifiers do in English, they have the effect of prepositional phrases as well.
Furthermore, the article contains some paratactic elements which require further explication. For example, “本法” is translated as “for the purposes of this
law.” While this translates into smooth, functionally equivalent English, it is not actually what “本法” means. Rather, “本法” means “this law.” As Zhong (1980/1997)
and F. Zhang (2017) note, it is necessary to show in English language what is implied in Chinese. Moreover, “所稱集體商標 does not mean “collective mark,” but rather
“that which is called ‘collective mark.’” Again, the PKU translation is functionally equivalent to “’collective mark’ means.” However, it must be noted that this extreme parataxis element in the beginning of the sentence is not indicative of modern
Chinese, but rather classical Chinese, which Lu (2008) notes omits implied words to a greater extent than does modern Chinese.
While the Chinese and English are technically grammatically correct, there is a stylistic issue with the Chinese. The issue is that the Chinese wording contains the word “的” twice in the same clause. This word corresponds to the word “of” in English, a word which is used only sparingly in Chinese and is what Yu (2014/2018) believes to be a hallmark of Westernized Chinese. As for the English, the
oversimplicity as characterized by phrases such as “to use in commercial activities to indicate” clashes with English standard procedure and differs from what is seen in throughout Title 15 of the US Code. The Chinese text and translation are clearly simplified. Thus, despite the translation of Article 3(2) not being written according to
27
standard American legal language, it is written in a plain manner understandable to all and in accordance with the intent of matching the plainly-worded Chinese text.
Example 2: Article: 16(1).
The next article to be examined is Article 16 (1), an article which discusses the validity of trademarks with geographical indications. It is a representative example of the use of the word “於” being used in a non-colloquial context in a manner that
matches legal English usage. The following is the full text and a translation of Article 16(1) followed by a phrase-level syntactic analysis of Article 16 (1):
Table 3
Phrase-level Syntactic Analysis of Article 16, Paragraph 1
Article 16(1) Original Text Article 16(1) PKU Translation
商標中有商品的地理標誌，而該商品 並非來源於該標誌所標示的地區，誤 導公眾的，不予註冊並禁止使用；但 是，已經善意取得註冊的繼續有效
Where a trademark contains a
geographic indication of the goods but the goods do not originate from the region indicated thereon, thus misleading the public, the trademark shall not be registered and shall be prohibited from use; however, those that have been registered in good faith shall continue to be valid
Table 4
Phrase-Level Syntactic Analysis of Article 16(1)
Original Text Unit PKU translation
(Chinese Order) PKU Translation
(Original Order) Match 商標中 PP Where a trademark Where a trademark Yes
有 V contains contains Yes
商品的 N goods a geographical
indication of No
地理標誌 Adj
phrase a geographical
indication of goods No
而 conj but but Yes
該商品 NP the goods the goods Yes
28
並非來源於 PP do not originate from do not originate
from Yes
該標誌所標示
的 adj
phrase indicated thereon the region No
地區 N the region indicated thereon No
誤導 V thus misleading thus misleading Yes
公眾的 N the public the public Yes
不予註冊 VP the trademark shall not
be registered the trademark shall not be registered Yes
並 conj and and Yes
禁止使用 VP shall be prohibited from
use shall be prohibited
from use Yes
但是 conj however however Yes
已經善意取得
註冊的 adj
phrase those that have been registered in good faith
those that have been registered in
good faith Yes 繼續有效 VP shall continue to be
valid shall continue to
be valid Yes
There is a greater level of similarity and dissimilarity observed between the English and Chinese of Article 16(1) when viewed from the phrase level. One such reason hitherto unaddressed in this study is that the usage of the word “於” in the
phrase “並非來源於.” The word in this case means “在,” but also has a similar effect
to the word “從” (MOE Abridged Dictionary, n.d.). The common colloquial method
of phrasing what means “originate from” is “從…來.” However, were this phrasing
be used to replace “該商品並非來源於該標誌所標示的地區,” then it would be
rendered “該商品並非是從該標誌所標示的地區來的.” This creates the following two literal translations, in the vein of Larson (1984):
29
Table 5
Literal Translation of the First Two Phrases of Article 16(1)
該商品並非來源於該標誌所標示的地區 該商品並非是從該標誌所標示的地區來
的 The goods do not originate from mark’s
indicated region The goods are not from the mark’s indicated region originated
While neither literal translation makes complete sense, the former of the two matches much more with English than does the latter. Furthermore, were it not for the adjective phrase preceding the noun rather than vice versa, the phrase, and by
extension, the remainder of the article would also be completely the same.
Furthermore, both the original Chinese of Article 16 (1) as well as its English translation end with a verb phrase. With respect to the English, this is most likely the case in that although comparatively rare, complex English sentences can end with verb phrases (Rosenbaum, 1967). With respect to Chinese sentences, the ending of a sentence with a verb phrase is a common element (Chen, F. J., 2006).
Unlike the previous example, the Chinese used in Article 16(1) does not show any marks of Westernization, but the use of the words “thereon” and “where” does conform with what Mellinkoff (1963/2004) acknowledges is characteristic of American legal language. With respect to the latter word, the Chinese does not contain any word at the beginning of the article giving any direction indication of any
Unlike the previous example, the Chinese used in Article 16(1) does not show any marks of Westernization, but the use of the words “thereon” and “where” does conform with what Mellinkoff (1963/2004) acknowledges is characteristic of American legal language. With respect to the latter word, the Chinese does not contain any word at the beginning of the article giving any direction indication of any