探討中國與美國之間的法律語言相似度：以中國商標法英譯為例

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(1)A thesis submitted to National Taiwan Normal University in partial fulfillment of the requirements for the degree of Master of Arts 國立臺灣師範大學翻譯研究所碩士論文. Advisor: Carlos Tee, PhD 指導教授：鄭永康. Exploring Syntactic Similarity Between China’s Trademark Law and American Legal English Through Translation 探討中國與美國之間的法律語言相似度：以中國商標法英譯為例. Advisee: Maxwell Alexander Koenen 研究生：郭邁偉. October 2018 中華民國一〇七年十月.

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(3) Abstract Looking deeper into the official translations into English of PRC intellectual property law provided by Peking University, especially the more recent revisions thereof, one finds a high level of smoothness and consistency that surprising for a language that does not belong to the Indo-European family. While one could logically argue that the apparently native English-like structure and wording of English translations of PRC law are the result of either an especially adept translator who adheres strictly to Eugene Nida’s idea of functional equivalence, or, in the vein of Hans Vermeer, is a translator whose mission is to translate in such a fashion as to render a look similar to that of a English source text, there appears to be something more at play here; something in particular that speakers of Chinese can find in Chinese law: that the syntactic structures of the PRC’s Trademark Law are already very similar to what is generally accepted to be standard English legal syntax. The current linguistic state of affairs with respect to PRC intellectual property law was not always the case in the PRC nor is it the case in Taiwan, whose legal language maintains far more syntactic similarity with Qing Dynasty law than it does with PRC law despite the introduction of new legal concepts over the centuries. Lastly, it is clear that while similarities do exist between statutes of the US Code in Terms of content, the phrasing of the former generally does differ from the latter. As such, any claim that that the PRC Trademark Law is a translationese edition of the US Code is untenable. The findings explicated here provide a strong linguistic basis for the idea that the syntactic smoothness of the Peking University translations of the PRC Trademark Law is due to similarities in syntactic structure between the Chinese language used in that law and its English translations. This is also a trend that is made more apparent i.

(4) when the English translation to which the Chinese of the PRC Trademark Law is being compared is writing in a more Americanized style. This study will not entirely set out to prove that Chinese intellectual property law is at the worst simply English using Chinese characters, but rather that the Chinese used in the most recent version of the Trademark Law of the People’s Republic of China is highly similar to legal English in terms of syntax at the phraselevel. Keywords: Syntax, law, PRC Trademark Law, Taiwan, Legal Translation, phrase-level, Language Simplification. ii.

(5) 中文摘要本論文探討中華人民共和國 2008 年商標法文本之「英文化」相關話題。文本比較顯示該法之語法結構與美國法律語言非常雷同，幾乎完全背離臺灣，及早起中國與香港慣用法律文本傳統句法。雖然句法相似，美國與中國法律條文之間仍然存在諸多語詞方面的差別，因此不能概括定論中國法律措辭句法完全是美國智慧財產法的中譯版本。根據文本比較結果，作者認為有足夠理由顯示北京大學之商標法英譯版本句子高順暢度是因為中文原文結構上與其英譯本相似度頗高。本研究探討重點在於證明中國商標法使. 用之語言在詞層級上（phrase level）非常相似。本. 論文採取非量化研究，句法比較以「詞」（phrase）為單位，文本涵蓋中國商標法第 3(2) 、6、14(5) 、16(1)、22、29、60(2)等條。為了更充分對比語言效應，文中也涉略臺灣與香港法律語言發展相關議題。關鍵詞：中國法律語言，句法，中國商標法北大翻譯版，法律賦予，詞層級，美國法律語言. iii.

(6) Acknowledgements The writing of this thesis has truly been an arduous task, but not one that I did entirely alone. I am very thankful for many the assistance of many people, for aid both great and small. First and foremost, I would like to thank my thesis advisor Dr. Carlos Tee. His recommendations and corrections ensured that I managed to stay on the right track despite my using an untested methodology. His encouragement and expertise were much appreciated during this journey. I would also like to thank the Chinese Nationalist Party (KMT) for graciously aiding me in my search for documents related to the Chinese Cultural Renaissance. I would also like to thank the Tsai-Lee law firm for all of the experience which they have given me in having me translate PRC law. Working with this firm is what gave me the impetus to write this topic. I’m also very grateful to Professor Daniel Hu and Dr. Jonathan Evans, who kindly agreed to be a part of my oral defense panel and provided excellent feedback on how this thesis could be improved and how its theoretical basis could be made more tenable. Lastly, I would like to thank my friends and classmates for their support and interest in what I was writing.. iv.

(7) Contents. Abstract ........................................................................................................................... i 中文摘要...................................................................................................................... iii Acknowledgements ....................................................................................................... iv Research Motivation ................................................................................................ 1 What is Functional Equivalence? ........................................................................... 2 What Makes for Chinese? ....................................................................................... 3 Westernized Chinese ................................................................................................ 5 Brief Background on Legal Language ................................................................... 7 Chinese Legal Language According to the Literature.......................................... 8 Methodology ............................................................................................................. 9 CHAPTER II................................................................................................................ 11 The First Trademark Laws in China ................................................................... 11 Background: Pre-1980s PRC Trademark Legislation ........................................ 16 Background: 1982 to Present ................................................................................ 19 CHAPTER III .............................................................................................................. 22 Introduction to Examples ...................................................................................... 22 Example 1: Article 3(2). ..................................................................................... 23 Example 2: Article: 16(1)................................................................................... 27 Example 3: Article 22......................................................................................... 30 Example 4: Article 29......................................................................................... 33 Example 5: The First Sentence of Article 60 (2).............................................. 36 Different Versions of Article 60(2) ........................................................................ 39 Americanized Version ........................................................................................ 39 The SOV Element .................................................................................................. 41 Example 6: Article 14(5). ................................................................................... 42 When There is Excessive Foreignization in the Translation .............................. 43 Example 7: Article 6........................................................................................... 43 v.

(8) The Intention of the Translator ............................................................................ 47 CHAPTER IV .............................................................................................................. 48 Analyzing Taiwan’s Trademark Act ...................................................................... 49 First Article to be Analyzed: Article 83. ........................................................... 49 Second Article to be Analyzed: Article 60. ....................................................... 51 Third Article to be Analyzed: First Sentence of Article 96 ............................ 55 Observations ........................................................................................................... 58 CHAPTER V ............................................................................................................... 59 Communist Ideology and Political Language...................................................... 59 Why Did Taiwan Not Follow the Same Path? ..................................................... 63 The KMT Reaction to the Cultural Revolution .................................................. 64 CHAPTER VI .............................................................................................................. 66 Similarities and Dissimilarities Noticed ............................................................... 69 Is the Chinese Westernized? ................................................................................. 72 Are the PKU Translations of High Quality?........................................................ 74 How “Chinese” is Modern Chinese Law ............................................................. 76 Taiwan ..................................................................................................................... 77 Mellinkoff and the State of English Law ............................................................. 77 Why the Methodology was Chosen and its Weaknesses ..................................... 78 Limitations of the Study ........................................................................................ 79 Suggestions for Future Research .......................................................................... 80 References ................................................................................................................... 81 APPENDIX ................................................................................................................. 90 Background of Hong Kong ................................................................................... 90 Sample Analysis of 2(1) “Prescribed.” ............................................................. 91 Trademark Law of the People’s Republic of China (2013 Amendment) ................ 92 Article 3 of the Common Program......................................................................... 143. vi.

(9) CHAPTER I INTRODUCTION Research Motivation As Tiersma (1995) wrote: “our law is a law of words.” To that it must be added that the translation of law from one language to another involves the transfer of a complex set of syntactical and lexical elements from one language to another without losing the original meaning. For some language pairs, this is easier than others. For English, being an Indo-European language of the Germanic Branch and with plentiful Latinate vocabulary (Nutting, 1920; Buck, 1904) and Chinese being a Sino-Tibetan language far removed from Europe (Egerod, 2015)1, it would seem that the translation of law between these two languages would be a very difficult exercise. In the author’s own experience with legal translation from Chinese to English, however, this was not the case- at least with respect to the translation of laws written in the People’s Republic of China. The opposite is true when translating laws from Taiwan2. The relative ease of translating PRC law into English vis-à-vis the difficulties that arose when translating Taiwanese law into English was a cause for thought. A review of both the original text and English translation of the PRC’s Trademark Law showed strong syntactic similarities between the two at a glance, leading to the idea that if viewed in greater detail and analyzed syntactically at the phrase level, the preponderance of phrase-level units of the original Chinese text would appear in the same sequence as those of the English translation of that text, especially in instances where a more Americanized legal written style is used for the. One also must take into account cultural differences when considering differences in language. the author first translated Chinese labor and immigration law as an intern in Shanghai in the summer of 2013. Since the author’s arrival in Taiwan, the author has been translating intellectual property law, both from Taiwan and the PRC. 1 2. 1.

(10) English translation. There main reason why the 2013 Amendment to the PRC’s Trademark Law was chosen for observation is that it touches upon an area of law which has seen the introduction of many foreign concepts into Chinese, which has profound implications for how the introduction of such concepts can change a language. The goal of this study is to find syntactic connections between the legal language used in the PRC and English legal language, particularly that which is used in the United States. Despite these languages belonging to different language families, a connection between these two languages in the area of legal language syntax could contribute to the academic study of forensic linguistics in both Taiwan and the PRC and especially how that relates to the translation of Chinese-language laws into English. Thus, against the background of translation theories from scholars such as Terence Odlin and Eugene Nida, explores the idea that the Chinese used in the PRC’s Trademark Law could be linguistically similar at the phrase level to English language law, particularly American law, to a high degree. What is Functional Equivalence? The theory of functional equivalence will be employed in the main section of this study. Linguist Eugene Nida proposed the theory in a 1969 journal article entitled The Science of Translation (Nida, 1969/2007). Nida believed that formal correspondence, the opposite of functional equivalence, “falls off quite rapidly as one moves away from the languages closest to the source language” (p. 496). Thus, it would seem that functional equivalence would seem to be a more rational approach when compared with the usage of formal correspondence. As House (2014) notes, Nida took the response of the receptor into the main consideration as Nida and Taber 2.

(11) (1982) claim that to do otherwise is to “distort [a] message, so as to cause the receptor to misunderstand or labor unduly hard (p. 201). Ye and Shi (2009) acknowledge the necessity of functional equivalence when translating between English and Chinese, claiming that to do otherwise risks a text becoming “Chinglish” (p. 6) However, a functionally-equivalent text stands in contrast to an intention of complete replication of the original text into another language, which Song (2007) implies is close to being the goal of legal translation. What Makes for Chinese? In determining the relative simplicity or convolutedness of Chinese legal texts, be they from the PRC or Taiwan, it is first necessary to identify what exactly Chinese grammar should look like. Unfortunately, the question of what constitutes Chinese grammar is a rather difficult one to answer. Li and Thompson (1974) advance the idea that Chinese is a Subject-Object-Verb (SOV) language. However, this idea has been roundly criticized by other scholars who point out that Li and Thompson, as well as other scholars who advance the same idea, rely heavily on the “把” construction in proving their point (Light, 1979; Sun & Givón, 1985). Other scholars point out that passive Chinese clauses are SOV (Zhu and Shi, 2017). The major Chinese grammar book Modern Chinese Grammar by Liu et al (1996) as well as Contrastive Analysis & Its Applications in Language Pedagogy by Fred J. Chen (2006) both show modern Standard Chinese to be Subject-Verb-Object (SVO) languages. To further confuse matters, Zhang & Zhang (2017) as well as Cheng (1985) introduce Chinese as a language that is less grammatically developed. What this entails is that Chinese is mainly an SVO language that has some SOV characteristics. However, that is not to say that Chinese does not have a great deal of consistency as well. Given the validity of the arguments adduced by both sides of the SOV/SVO debate, it is perhaps most 3.

(12) logical to label Chinese as an SVO language with SOV characteristics. Chinese has several rules which cover the most common sentences or clauses. The most basic form is attributive + subject / adverbial + predicate + attributive + object (Liu et al, 1996). F. Zhang (2017) presents a more in-depth version as it relates to law: “subject-predicate+的,” “verb-object+的,” “preposition-object+的” and “dual subject-object+的” (p. 139). F. Zhang (2017) points out that the attributive word “的” is integral to a Chinese legal sentence and that it has a broad range of applications, ranging from the function of rendering a phrase more compact to, when applied to a description about a criminal offense, renders the phrase about that offense to appear more serious. For example, the phrase "有下列情形之一的，當事人可以解除合同: " allows for a more complete accounting of a following list and any constituent parts of that list to a Chinese reader (p. 141). Thus, there is little reason to be surprised that the character “的” appears over four-hundred times in the Trademark Law and is in every article and nearly every paragraph (Standing Committee of the National People’s Congress, 2013). The passive voice in Chinese is a rather interesting concept because as Yu (2014/2018) notes, it is an aspect of modern Chinese that is more Western than it is Chinese. Therefore, as Ye and Shi (2009) note, it makes sense that Chinese to English translation often involves changing an active voice into a passive one. The character “被,” a character which is used time and again in Chinese translations of English texts, is rarely used to denote a passive voice (Liu et al, 1996; Ye and Shi, 2009). Rather, these scholars note that passives such as “由,” “讓” and “使” are much more. 4.

(13) common than “被” in proper Chinese. As it pertains to word order, Chen et al (2013) note that the passive precedes the object. Thus, the Chinese phrase “本法由國務院工頒布” (This law was promulgated by the State Council) would be “This law, by the State Council, was promulgated.” However, Zhu and Shi (2017) note that there are passives in Chinese which are determined by the object structure of a sentence and are not explicitly stated. Westernized Chinese What constitutes Westernized Chinese and by proxy proper Chinese is not an easy question to answer. In this thesis, guidelines set forth by Xiong (2011), Peyraube (2000) and Yu (2014/2018) are given as benchmarks for determining the extent of Westernization in written Chinese. Yu (2014/2018) gives pertinent examples of what can be considered Westernized Chinese, along with explanations of what constitutes Westernized Chinese. For example, Yu lists one works of the author Zhu Ziqing (朱自清) as a prime example of Westernized Chinese. The excerpt from the work entitled Cong Cong (匆匆) is as follows: 燕子去了，有再來的時候；楊柳枯了，有再青的時候；桃花謝了，有再開的時候。但是聰明的，你告訴我，我們的日子為什麼一去不復返呢？－－是有人偷了他們罷；那是誰？又藏在何處呢？是他們自己逃走了罷；現在又到了那裡呢？. 5.

(14) 我不知道他們給了我多少日子；但我的手確乎是漸漸空虛了。在默默裡算著，八千多日子已經從我手中溜去；像針尖上一滴水滴在大海裡，我的日子滴在時間的流裡，沒有聲音，也沒有影子。我不禁汗涔涔而淚潸潸了。(Yu, 2014/2018, p. 177). Whilst critical of Zhu’s repetition of certain words, Yu also points to multiple instances in which Zhu violates standard Chinese grammatical precedent. One such violation is the perceived overabundance of pronouns in the original text. Providing only half of the text, Yu claims that the entire text contains thirty-four instances in which the pronoun “I” appears in Cong Cong. Given that there are few characters used, this is a massive number of instances. Such a liberal usage of pronouns is not the standard for Chinese writing, but rather is a hallmark of many Western languages (Yu, 2014/2018). With respect to nouns, Liu notes that most Chinese nouns do not have prefixes or suffixes. For example, in the Chinese word for “desk” (桌子), the character “子” serves as a suffix (Liu). In the ROC Ministry of Education Abridged Dictionary, “子” as a suffix carries no particular meaning at all, simply stating that it is a suffix that links nouns, verbs, classifiers and adjectives (MOE Abridged Dictionary, n.d.)3. However, other suffixes like “性” and “化,” though marked by Yu (2014/2018) and Xiong (2011) and as evidence of Westernization, these suffixes do appear in PRC law.. 3. 詞綴。用於名詞、動詞、形容詞等之後 (MOE Abridged Dictionary, n.d.). 6.

(15) For example, the word “性” as a suffix appears in PRC Trademark Law (Standing Committee of the National People’s Congress, 2013) three times in order to convey the terms iconic (標誌性), deceptive (欺騙性) and discriminatory (歧視性) respectively. Brief Background on Legal Language As the main object in this study is legal language, it is important to first understand the nature of legal language. Mellinkoff (1963/2004) defines legal language as “the customary language used by lawyers……. It includes distinctive words, meanings, phrases and modes of expression. It also includes certain mannerisms of composition not exclusive with the profession but prevalent enough to have formed a fixed association” (p. 3). F. Zhang (2017) notes that legal language allows for grammar rules which deviate from normal grammar and that it also sees the frequent reoccurrence of structures. Mellinkoff (1963/2004) notes that English law often features words which retain meanings that no longer are used in common parlance, such as the use of “instrument” to mean “legal document” (p. 12). Mellinkoff (1963/2004) and F. Zhang (2017) also note that words such as “aforesaid,” “where4” and “hereafter” are used commonly in English-language law despite the fact that these words are not commonly used colloquially. F. Zhang (2017) notes that in both Chinese and English law, specialized terms are used in lieu of more common terms, such as “construe” being used in lieu of “explain” in English and “訴訟” being. 4. Not pertaining to a location, physical or otherwise. 7.

(16) used instead of “打官司” in Chinese (p. 63)5. Chinese Legal Language According to the Literature While the legal language used in the People’s Republic of China has undergone some changes since the foundation of that country, PRC laws do share some stylistic commonalities with each other. Ning (1987) notes that PRC law is characterized by the liberal use of conditional phrasing6, transitions and imperative sentences. Conditional phrasing is marked by the “是……. 的” construction, either with or without “的” (Ning, 1987), imperative sentences are marked with a limited number of words preceding verbs such as 應當, 必須, 不得 and 不准 and transitions are marked by the liberal use of “但” (Ning 1987). Xie (2003) notes the large number of legal terms that are turned into noun phrases through the combination of a common word being modified by the word “行為.” Xie (2003) also notes that PRC law avoids the use of pronouns whenever possible, a characteristic that is in line with formal Chinese writing (Yu, 2014/2018). While, PRC law contains a considerable amount of foreign terms, it also possesses a large number of terms which do not exist outside of Chinese law or existed prior to Western contact. F. Zhang (2017), Qu (2013), N. Wang (2016) and J. Wang (2005) note that a significant number of Western legal terms and concepts. The latter is a strange case because Qu (2013) shows that the term “打官司” was in use during the Qing Dynasty despite that term being colloquially today (p. 292). F. Zhang (2017) notes that in English, law relies heavily on nouns where verbs would be in Chinese. 6 By “conditional phrasing,” Ning (1987) refers to phrasing used to describe situations which will occur 5. in the event that a certain action is done or not done. In Chinese, phrases such as “是……. 的,” “….才” or “假設” are often employed to give the aforementioned effect, whereas in English, phrases such as “where” or “should” give that effect (Mellinkoff (1963/2004).. 8.

(17) arrived in China in the late 19th century, often through Japan. F. Zhang (2017) also notes that terms such as “承包經營責任制” and “人民調解” do not exist outside of PRC Law. Regarding terms which existed in Chinese prior to Western Contact, a large number of the terms listed in the 1819 English dictionary of Chinese legal terms translated by Robert Morrison are still used today7. Today, foreign influences are not nearly as pronounced as they were during the late Qing Dynasty. While there are no explicit references to style being copied, Song (2009) notes that English language law has been consulted for updates to PRC law. Soviet law has also been a source of inspiration (Ginsburg, 1968). Methodology The main object of study in this work will be in Chapter III, with some supplementary material in Chapter IV. Chapter 3 will involve the analysis of Articles 3(2), 6, 14(5), 16(1) 22, 29, and the first sentence of Article 60, Paragraph 2 from the 2013 version of the PRC Trademark Law as well as their PKU translations. These articles will be studied at phrase-level in order to ascertain whether or not there exists syntactic similarity between the original Chinese of the Trademark Law and the PKU translation. These seven articles were specifically chosen because they or their translations possess certain characteristics representative of the Trademark Law as a whole or of modern Chinese legal language as a whole. Article 3(2) was chosen because of its representativeness of how concepts are introduced in the Trademark Law. Article 14(5) was chosen because of its representativeness insofar as the SOV construction is used. Article 16(1) was chosen because of its representativeness with respect to how. 7. Some of these terms are still used today. 9.

(18) the Chinese word “於” is used in a fashion that is not used in colloquial Chinese and is syntactically similar to English. Article 22 was chosen because Introduces the split verb phrases phenomenon in complex English sentences which is also endemic in Chinese. Article 29 was chosen because it is representative of the greater propensity of legal Chinese vis-à-vis colloquial Chinese to render verbs into nouns. Article 60(2) was chosen because it is representative of articles containing long lists and of the fact that rendering the language of Chinese law to appear more American increases the syntactic similarity between the Chinese and the English texts. With respect to the translation from PKU and how a certain translation style could influence similarity, Article 6 was chosen because it is representative of how excessive attempts at foreignization in the translation of the Trademark Law actually decrease syntactic similarity. Articles in the Trademark Law which resemble existing Western Law in terms of content shall also be compared to a similar Western law and checked for similarity in wording in addition to being analyzed at the syntactic level. This will also serve as a tool to ascertain whether or not language transfer resulted in either the Chinese or the PKU translation of the Chinese. Chapter 4 will involve the clause-level syntactic analysis Articles 83, 61 and 96 from Taiwan’s Trademark Act using the same methodology as Chapter 3. These laws shall act as a control insofar as the pre-analysis of these laws is based on the assumption that the syntactic similarity that they possess is far less than that of the articles of the Trademark Law. A Chinese phrase will be considered “matching” with its English counterpart if it is arranged in the same order as its English counterpart. The phrases used shall be noun, adjective, adverb and verb phrases; individual conjunctions, verbs, nouns, 10.

(19) adjectives and adverbs will also be used when there are no phrases with which they can be directly associated. Prepositional phrases may also include parts of speech such as nouns, verbs, adjectives and adverbs.. CHAPTER II HISTORY OF CHINESE TRADEMARK LAWS The following chapter explores the history of trademark laws in China from the first trademark laws to the PRC era. The words used and the general linguistic traits of these laws are also explored. The First Trademark Laws in China A system similar to trademarks existed in a very primitive stage early in Chinese history, but trademark laws did not get codified until the late Qing Dynasty (N. Wang, 2016). When approached by Western nations for trade negotiations, the 11.

(20) Chinese did not have a word for “trademark.” The government used “商牌” at times, but eventually settled on “商標,” a term that was used in Japan, first using this term for a treaty with the United States in 1902 (N, Wang, 2016). Against the backdrop of increasing fears about lagging behind the West, the Qing government passed the Regulations Governing the Registration of Trademarks (For Implementation on a Trial Basis8) in 1904 (N, Wang, 2016). Despite having great amount of Classical Chinese linguistic structures vis-à-vis modern PRC Trademark Law, the law itself is a notable departure from previous abstruse Qing law due to additions such as punctuation (with the exceptions of the pre-existing quotation marks in Classical Chinese) and the fact that it was not written in Classical Chinese (N, Wang, 2016). For example, though it cannot be representative of the other articles in every way, the original Chinese of Article 427 of the Great Qing Legal Code nonetheless illustrates the recondite nature of the Qing legal language: “凡造作局院頭目工匠多破物料入己者計贓以監守自盜論追物還官” (Great Qing Legal Code). Below is a translation based on the author’s understanding followed by a translation rendered by the scholar William C. Jones. Maxwell Koenen translation In all instances in which the head artisan of a construction and manufacturing bureau is wasteful in his use of materials and appropriates them for himself, the value of the unlawfully obtained property shall be calculated and a sentence passed on that head artisan as if the head artisan was a supervisor of a guardian official. Furthermore, said property shall be confiscated by the. 8. “商標註冊試辦章程” in Chinese.. 12.

(21) authorities. William C. Jones translation In every case where the head government artisan in a manufacturing or construction agency (apart from the quantity required, falsely and fraudulently) uses an excessive quantity of materials (and subsequently, fraudulently) appropriates them for himself, calculate the value of the illegally obtained property (that he has appropriated) and sentence on the basis of a supervisor or guardian himself stealing (Jones et al, 1994, p. 427).. Quite clearly, at the most basic level, the Qing Code’s language is very abstruse. It uses many single-character words and does not fully explain the context of the situation at hand9. Below is Article 1 of the Regulations Governing the Registration of Trademarks for Implementation on a Trial Basis as well as a basic clause-level translation10 and a functionally equivalent translation rendered by the author: Table 1 Clause-level and functional equivalance translation of the Regulations. Original Text 即確立了華洋商人一體保護的原則，規定「無論華洋商」，慾專用商標者，須照此例註冊」。要求呈請的商標必須具備顯著的圖形、文字、記號. Clause-Level Translation The principle that any business, Chinese or foreign is hereby established, stipulating that irrespective of whether or not a business is Chinese or foreign, (any business) wishing (to obtain) exclusive rights over a trademark, must register pursuant to these regulations. A trademark must be a distinctive image, text or mark in order that. Functional Equivalence Translation The principle that any business, Chinese or foreign shares the same protections is hereby established. Any business, be it Chinese or foreign, wishing for the exclusive rights to use a trademark must complete registration procedures pursuant to these provisions. A. As it pertains to the illicit appropriation of the building materials by the official in question The methodology used is not by clause and not by phrase. This is not the methodology which will be employed in the next chapter or in Chapter 4 with respect to Taiwan. 9. 10. 13.

(22) 特徵方可准予註冊。. it may be registered.. trademark must be a distinctive image, text or mark in order that it may be registered.. Beyond the noticeable awkward phrasing the use of verbs to begin clauses, the clause-level translation and the smoother functionally equivalent translation are not very far off from each other. And, as for the “Chinese-ness” of the original text, given its use of verbs rather than nouns one could strongly argue that it follows Chinese convention. However, its use of “的” twice in the same clause does not follow Chinese convention (Xiong, 2011). Though the above examples seem tangential, they prove the point that (1), the Chinese used in the Qing legal code is vastly different from that used in China’s first trademark law, and (2), the Chinese language itself has changed massively. After the fall of the Qing Dynasty and the founding of the Republic of China, the powers that be decided that the existing Qing trademark legislation was insufficient and needed to be replaced. Thus, in 1923, the Trademark Law was passed by the Beiyang Government in Beijing (N. Wang, 2016). In 1930, after China was united under KMT rule, a new Trademark Act was passed, one which rendered registration much more difficult than in years past (N, Wang, 2016). The Trademark Act has undergone thirteen revisions since 1930. The word usage, however, has remained stable over the years. To illustrate this point, a comparison of all of the changes made to Article 1 of the Trademark Act over time are 14.

(23) shown: Table 2 Each Instance in which Article 1 has been Amended11. Year Text. Changes. 凡因表彰自己所生產、製造、加工、揀選、批售或經紀之商品，欲專用商標者，應依本法呈 1930 請註冊。. Original. 商標所用之文字、圖形、記號或其聯合式，須特別顯著，並指定所施顏色。 first complete rewrite since relocation to Taiwan; first line of 為保障商標專用權及消費者利益，以促進工商 original stays as is. Second line has " 1972 包括名稱及圖樣" added after 商標企業之正常發展，特制定本法 and that section has been relocated to Article 8 2003. 為保障商標權及消費者利益，維護市場公平競 "維護市場公平競爭" and "商標權" are added. 爭，促進工商企業正常發展，特制定本法為保障商標權、證明標章權、團體標章權、團. 2012 體商標權及消費者利益，維護市場公平競爭， "證明標章權" and "團體標章權" are added 促進工商企業正常發展，特制定本法 It is clear that from 1972 to the present, the only aspects of the law that changed were the additions of certain concepts and the relocation of text to other articles12. Nothing about the language itself changed, even though what was Article 1 in 1930 had moved elsewhere. The heavy usage of verbs, the lack of abuse of “的” or “之” and the lack of adoption of English syntax render the above Chinese unwesternized (Xiong, 2011; Yu, 2014/2018).. Taiwan Trademark Amendments Website (Legislative Yuan, 2011) A large number of articles were added to the Trademark Act or moved to other locations, which is why what was 11 12. 15.

(24) With respect to Taiwan, the trademark laws used in modern Taiwan are updated versions of existing ROC law (T.S. Wang, 2017). T.S. Wang (2017) notes that these laws have undergone a certain degree of American influence. However, the degree in which this translates to similarities to English legal language will be tested in Chapter 4. Background: Pre-1980s PRC Trademark Legislation Being a communist government and a rather radical one at that, one could reasonably expect that the newly formed People’s Republic of China would abolish all private property, given the disdain for private property enshrined in Marxist doctrine. However, the Common Program of The Chinese People's Political Consultative Conference (“Common Program”), the interim constitution for the state whose establishment was to be proclaimed by Mao Zedong two days after its passing, contains language which explicitly protects private property. The Common program entails that the state must “protect the public property of the state and of the cooperatives and must protect the economic interests and private property of workers, peasants, the petty bourgeoisie and the national bourgeoisie” (Standing Committee of the National People’s Congress, 1949)13. This laid the groundwork for the protection of intellectual property in the PRC. The first legislation governing trademarks in the PRC was the Temporary Provisions Governing the Registration of Trademarks14 (“Temporary Provisions”), which was passed in 1950. The language used in the law differs from later usage in that it contains more terms which bear a stronger similarity to Classical Chinese. For. 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. 16.

(25) 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 一般公私廠、商、合作社對自己所生產、製造、加工或煉選的商品，需專用商標是，應依本條例的規定，向政務院財政經濟委員會中央私營企業局申請巨 Original Chinese. 冊。. 17. Text of Article 2 of the Regulations 企業使用的商標，應當向中央工商行政管理局申請註冊。不使用商標的商品，如果有必要和可能在商品或者商品的裝潢上載明企業名稱和地址的，應當載明，以便管理。.

(26) 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 二人以上用相同或近似的商標，使用在同一類商品之上，分別申請註冊時，應准最. English Translation provided by Maxwell Koenen. Text of Article 10 Comment of the Regulations Second to last and last clauses of the 兩個或者兩個以 Temporary Provisions 上的企業申請商 deal with a matter that is not covered in the 標註冊的時候， Regulations.. 先申請的註冊，如於. 如果商標相同或. 同日申請，則准使用. 者近似，准許最. 在先的註冊。 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.. 先申請的註冊。 When two or more enterprises apply for a trademark, should one trademarks be similar to the other, the first application to be submitted shall receive priority.. Despite being wordier in Chinese, the simplicity of the language used in the Regulations (especially as reflected through the use of the term 的時候-when) renders a shorter English translation.. It would seem as though the law started completely anew because required that all trademarks registered under the “reactionary” KMT government be reregistered (Standing Committee of the National People’s Congress, 1950) yet there 18.

(27) 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. 19.

(28) 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. 20.

(29) 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).. 21.

(30) 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 subjectpredicate pair is not within the scope of this study nor does it affect the result. In the 22.

(31) 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:. 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. 17. 23.

(32) Table 1 Comparison Between Article 3, Paragraph 2 and the US Code. Trademark LawChinese. Trademark Law-English. US Code- "Collective Mark". 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.. 本法所稱集體商標，是指以團體、協會或者其他組織名義註冊，供該組織成員在商事活動中使用，以表明使用者在該組織中的成員資格的標誌。 Table 2 Phrase-level Syntactic Analysis of Article 3, Paragraph 2. PKU translation (Chinese Order). PKU Translation (Original Order). N. For the purposes of this Law. For the purposes of this Law. Yes. NP. collective mark. collective mark. Yes. V. means. means. Yes. PP. (a mark) registered in the name of a group, an association, or any other organization. a mark. No. Original Text Unit. 本法所稱集體商標是指…(的商標) 以團體、協會或者其他組織名義註冊. 24. Match.

(33) 供該組織成員. 在商事活動中使用以表明使用者. PP. for the members of the organization. registered in the name of a group, an association, or any other organization. PP. to use in commercial activities. for the members Yes (order of the maintained) organization. PP. to indicate. to use in commercial activities. Yes (order maintained). NP. their memberships in the organization. to indicate. Yes (order maintained). N. a mark. their memberships in the organization. No. 使用者在該組織中的成員資格的標誌. Yes (order maintained). 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. 25.

(34) 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. 26.

(35) 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 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. 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. Table 4 Phrase-Level Syntactic Analysis of Article 16(1). Original Text. Unit. PKU translation (Chinese Order). PKU Translation (Original Order). 商標中. PP. Where a trademark. Where a trademark Yes. 有. V. contains. 商品的地理標誌. N Adj phrase. goods a geographical indication of. contains a geographical indication of. 而. conj. but. but. Yes. 該商品. NP. the goods. the goods. Yes. 27. goods. Match Yes No No.

(36) PP. do not originate from. do not originate from. Yes. 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. 不予註冊. VP. the public the trademark shall not be registered. the public Yes the trademark shall not be registered Yes. 並. conj VP. and shall be prohibited from use. Yes. 禁止使用. and shall be prohibited from use. 但是. conj. however. Yes. 註冊的. adj phrase. 繼續有效. VP. those that have been registered in good faith shall continue to be valid. however those that have been registered in good faith shall continue to be valid. 並非來源於該標誌所標示. 已經善意取得. Yes. Yes 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):. 28.

(37) 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. The goods do not originate from mark’s indicated region. 的 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 condition, which could lead one surmise that the word “where” may not be necessary at all. However, as Fu (2013) notes, there are numerous instances in Chinese legal translation in which the word “where” is left untranslated in Chinese or added in a Chinese translation of English legal texts.. 29.

(38) Example 3: Article 22. The next object of study is Article 22, an article which deals with trademark classification as whose language is representative of the split-verb phrase phenomenon found in complex English sentences as well as Chinese. Article 22 roughly corresponds to 15 U.S. Code § 1112 - Classification of goods and services; registration in plurality of classes (Trademark Act of 1946)20. For an overview of the language between Article 22, its English translation and the US Code, a table composed of the three is below: Table 3 Comparison Between Article 22 and the US Code. Article 22-Chinese (first sentence). 商標註冊申請人應當按規定的商品分類表填報使用商標的商品類別和商品名稱，提出註冊申請。商標註冊申請人可以通過一份申請就多個類別的商品申請註冊同一商標。商標註冊申請等有關文件，可以以書面方式或者數據電文方式提出。. PKU Translation. A trademark registration applicant shall, according to the prescribed classification of goods, enter the class and designation of goods on which the trademark is to be used, and file an application for registration. A trademark registration applicant may, in a single application, apply for registration of the same trademark on goods of different classes. Trademark registration applications and other relevant documents may be filed in written or data message form.. Corresponding US Code Text The Director may establish a classification of goods and services, for convenience of Patent and Trademark Office administration, but not to limit or extend the applicant’s or registrant’s rights. The applicant may apply to register a mark for any or all of the goods or services on or in connection with which he or she is using or has a bona fide intention to use the mark in commerce: Provided, That if the Director by regulation permits the filing of an application for the registration of a mark for goods or services which fall within a plurality of classes, a fee equaling the sum of the fees for filing. The specific section of the Trademark Law of 1946 cited in the US code is 15 U.S. Code § 1112 Classification of goods and services; registration in plurality of classes in the US Code.. 20. 30.

(39) an application in each class shall be paid, and the Director may issue a single certificate of registration for such mark.. There are some differences at play here. It is quite clear that the language of Article 22 of the Trademark Law does not deal with the responsibilities of the director, instead focusing on the applicant and what that applicant can do. Besides the content, text of the US Code contains terms such as “provided,” “such” and “bona fide,” words which Mellinkoff (1963/2004) notes are legalisms peculiar to Englishlanguage law. However, the English translation of Article 22 contains no such legalisms and besides the “以” construction, which Feng (2009) notes is a vestige of Classical Chinese used in modern times along with other monosyllabic words, the Chinese text is written in a simple manner. However, the main object of linguistic interest here is the similarity syntactic similarity between the Chinese source text of Article 22 and the PKU translation. If a strong level of similarity is discovered, it could have wider implications on the similarity between English and Chinese legal syntax. To this end, a phrase-level syntactic analysis of the Paragraph 1 of Article 22 is below: Table 4 Phrase-level syntactic Analysis of Article 22. Original Text Unit 商標註冊申請人. NP. PKU translation (Chinese Order). PKU Translation (Original Order). A trademark A trademark registration applicant registration applicant. 31. Match Yes.

(40) 應當…(填報) 按規定的商品分類表填報使用商標的商品類別和商品名稱. VP. shall…(enter). shall…(enter). Yes. PP. according to the prescribed classification of goods. according to the prescribed classification of goods. Yes. enter. enter. Yes. on which the trademark is to be used. the class and designation of goods. No. the class and designation of goods. on which the trademark is to be used. No. file An application for registration. file An application for registration. V (VP) Adj phras e NP. 提出. VP. 註冊申請. NP. Yes Yes. A high number of matches is seen in Article 22. Were it not for the phrase, “使用商標的商品類別和商品名稱” (the class and designation of goods on which the trademark is to be used), the match would be higher. In the phrase “使用商標的商品類別和商品名稱” (the class and designation of goods on which the trademark is to be used), the “商品名稱” is separated by the conjunction “和” and would be a separate noun were it not also being modified by “使用商標的,” in which “的” links the modifier and the nouns together (Liu et al, 1996). Thus, when being viewed at the phrase level, the English is “the class and designation of goods on which the trademark is to be used” rather than “the class on which the trademark is to be used and designation of goods.” One interesting point here is that the Chinese verb phrase “應當填報”is split by a prepositional phrase, just as that phrase is in legal English. In this case, the split 32.

(41) is “應當…按照…填報.” A layperson may view the syntax of “shall, according to” as odd, but as F. Zhang (2017) notes, English legal language has a syntax that differs from that which is common use. Furthermore, this same construction is used in 29 U.S. Code § 253 - Compromise and waiver: Any such compromise or waiver, in the absence of fraud or duress, shall, according to the terms thereof, be a complete satisfaction of such cause of action and a complete bar to any action based on such cause of action” (Fair Labor Standards Act, 1938)21. This split verb phrase pattern is present in articles beyond Article 22 and, as seen above, is also present in English-language law. Thus, a major commonality between PRC Chinese and English legal language is established. Regarding the divergence in legal syntax versus standard English, as Mellinkoff (1963/2004) notes, English legal language is largely based on precedent and that certain constructions which do not appear in modern speech appear in law. Odlin (1992) notes that certain phrasing in English, such as the name of the Shakespearean comedy Have you the Lion’s Part Written? does not conform to modern English grammar. The phrase “data message….be filed” in Article 22 of the Trademark Law is written in the same way. Instances where verb phrases are split by a prepositional phrase exist in both Chinese and English language and will feature prominently in other articles. Example 4: Article 29. The first article of the aforementioned category to be studied is Article 29, an article which explores the phenomenon of verbs being rendered into nouns which is. The specific section of the Fair Labor Standards Act cited in the US code is 29 U.S.C. § 203 – Compromise and Waiver in the US Code. 21. 33.

(42) endemic in Chinese legal language. This article entails that the Trademark Office of the PRC may request additional information or corrections from an applicant. The US Code does not contain similar language. The original text of Article 29 of the Trademark Law as well as a phrase-level syntactic analysis is as follows: Table 7 Phrase-level Syntactic Analysis of Article 16, Paragraph 1. Article 29 Original Text. 在審查過程中，商標局認為商標註冊申請內容需要說明或者修正的，可以要求申請人做出說明或者修正。申請人未做出說明或者修正的，不影響商標局做出審查決定。. Article 29 PKU Translation Where, in the course of examination, the Trademark Office deems it necessary to require an explanation or amendment of a trademark registration application, it may require the applicant to provide an explanation or amendment. The applicant's failure to provide such an explanation or amendment shall not affect the decision of the Trademark Office upon examination.. Table 8 Phrase-Level Syntactic Analysis of Article 29. Original Text. Unit. PKU translation (Chinese Order). 在審查過程中. PP. Where, in the course of examination. 商標局. N. the Trademark Office. 認為. V. deems it necessary. 商標註冊申請內容需要說明或者修正的可以要求. NP VP VP. 申請人做出. VP. PKU Translation (Original Order). Match. of a trademark registration application to require an explanation or amendment. Where, in the course of examination the Trademark Office deems it necessary to require an explanation or amendment of a trademark registration application. it may require. it may require. Yes. the applicant. the applicant. Yes. to provide. to provide. Yes. 34. Yes Yes Yes No No.

(43) an explanation or amendment The applicant's failure To provide. 說明或者修正. NP. 申請人未. NP. 做出. VP. 說明或者修正. NP. such an explanation or amendment. 不影響. VP. shall not effect. 商標局. NP. The decision of. 做出. V. the Trademark Office. 審查決定. NP. upon examination. an explanation or amendment The applicant's failure To provide such an explanation or amendment shall not effect the Trademark Office The decision of. Yes Yes Yes Yes Yes No No. upon examination Yes. The original Chinese shows a very high degree of similarity with its English translation. The sole major difference between the two is that the Chinese phrase order for “商標局認為商標註冊申請內容需要說明或者修正的” has the phrase “商標註冊申請內容, not “需要說明或者修正的” immediately following the subjectpredicate pair “商標局認為.” This is unavoidable because the drafters of the law did not introduce the direct object “申請人” in the first clause, which would have rendered the phrase “…認為申請人需要對於商標註冊申請內容提供說明.” Even if the Chinese in the preceding sentence replaced the original law, the same word order issue would still apply. One point of interest here is that the English translation of Article 29 contains the word “where” in the same manner that American or British law would. Fu (2013) uses the term “當” in analogous situations, although “中” (“during”) is used in Chinese. Although the translator uses “where” correctly, an intention of accuracy and simplicity would dictate that the term “when” or “during” would be used as these 35.

(44) terms maintain the spirit of simplicity seen in the original (Nida, 1969/2007; Vermeer, 1989/2007). Another point is that the changing “of a trademark” to “for a trademark” makes more sense in English. The implicit “的” in the sentence caused the translators to make this mistake. “的” is a possessive particle and does not always mean “’s” or “of.” Example 5: The First Sentence of Article 60 (2). The first sentence of Article 60 (2) of the Trademark Law deals with fines to be imposed against those who knowingly violate another party’s lawful trademark rights and is representative of how long lists are written in PRC Trademark Law. This article is a recent addition to the Trademark Law and represents a stronger stance by the PRC government against unlawful trademark use. A phrase-level syntactic analysis of the first sentence is provided below: Table 9 Phrase-level syntactic analysis of the first sentence of Article 60, Paragraph 2). Original Text 工商行政管理部門處理. Unit. PKU translation (Chinese Order). NP. the administrative department for industry and commerce. V. PKU Translation (Original Order) If the administrative department for industry and commerce. handling the dispute. Match. No. No. 時. Prep. if. handling the dispute. 認定. V. determines that. determines that. Yes (Word order Maintained) Yes. 侵權行為. NP. an infringement. an infringement. Yes. 成立的. V. is constituted. is constituted. Yes. 36.

(45) 責令立即停止. VP. 侵權行為. NP. 沒收、銷毀. VP. 侵權商品. NP. 和. conj. 主要用於製造侵權商品、偽造註冊商標標識. Adj phra se. 的. it shall order immediate cessation of infringement and confiscate and destroy the infringing goods and. Yes. of infringement and confiscate and destroy. Yes. the infringing goods. Yes. and. Yes. mainly used for manufacturing the infringing goods and counterfeiting the labels of the registered trademark. the tools. No. mainly used for manufacturing the infringing goods and counterfeiting the labels of the registered trademark. No. and may impose. No. reaches 50,000 yuan. a fine. No. and may impose. of not more than five times the illegal business revenues. No. if the amount of illegal business revenues. No. reaches 50,000 yuan. No. or. No. a fine. No. of not more than 250,000 yuan. No. if there is no. No. illegal business revenue. No. 工具. N. the tools. 違法經營額. NP. 五萬元以上的. Adj phra se. if the amount of illegal business revenues. 可以處. VP. 違法經營額五倍以下的. Adj phra se. 罰款. N. 沒有. V. 違法經營額. NP. 或者. Con j. 違法經營額. NP. 不足五萬元. Adj phra se. 的. it shall order immediate cessation. of not more than five times the illegal business revenues a fine if there is no illegal business revenue or the amount of illegal business revenues is less than 50,000 yuan 37. Yes.