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Jun 19, 2020 14:59
3 yrs ago
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French term

dégager

French to English Law/Patents Law: Patents, Trademarks, Copyright
Intellectual property dispute, Cour de cassation. Comparison of trademark for which registration is sought with existing one.

"Si, pendant longtemps la Cour de cassation a abandonné l'appréciation du risque de confusion au pouvoir souverain des juges du fond ... elle en encadre aujourd'hui l'exercice en exigeant, à la suite de la Cour de justice de l'Union européenne ..., que les juges du fond examinent le risque de confusion « au terme d'une appréciation globale fondée sur l'impression d'ensemble produite par les marques », laquelle doit tenir compte à la fois de la ressemblance entre les signes et du degré de similitude des produits ...

Cette méthode d'appréciation globale dégagée par la Cour de justice de l'Union européenne implique une comparaison simultanée et synthétique des signes en conflit et des produits ou services qu'ils désignent."

From the context I imagine something like "laid down" might suffice. But maybe it's not that imperative: "arrived at"? Or maybe someone knows an accepted Euro-legal-buzzword for this ... ?
Proposed translations (English)
4 +1 [method ...] elaborated by [...]
3 +4 determined by
3 +3 identify
4 to bring out/distill; to reach
3 deployed/used/implemented by the Court
4 -1 tested
3 -1 prescribed by
3 -3 to release from responsibility

Discussion

Daryo Jun 20, 2020:
@SafeTex No one is disputing that the ECJ has real powers - absolutely no doubts about that.

The problem is that it makes no difference regarding the meaning of "dégager une méthode pour ...".
Eliza Hall Jun 20, 2020:
@SafeTex Rather than derail this thread with a long discussion of how courts work, I'll just say that based on what you've written here about the ECJ, you have misunderstood what you read offsite as well as what I wrote on that topic. The jurisdiction of courts is a complicated topic and not particularly intuitive. If you're interested in understanding it, say the word and I'll post some links.
Eliza Hall Jun 20, 2020:
Appréciation globale (not méthode) Globale does not modify méthode in the FR original ("Cette méthode d'appréciation globale..."). It modifies appréciation. The likelihood of confusion analysis in US trademark law is very similar: "We turn next to the question of likelihood of confusion. . . . The similarity of the marks is a key factor in determining likelihood of confusion. To apply this factor, courts must analyze the mark’s overall impression..." https://www.likelihoodofconfusion.com/side-side-comparison-d...

In other words you don't look at each element of the mark in isolation ("This mark has a red star in it and that one does too, therefore people would likely confuse the two marks"). Instead, you look at each mark as a whole, all elements at once. Or as the court put it, this approach "implique une comparaison simultanée et synthétique..."

"Méthode d'appréciation globale" = "overall appreciation approach" or "approach of overall appreciation" or "overall appreciation method" or "method of overall appreciation."
SafeTex Jun 19, 2020:
@ Eliza So it's distill then?!?!?! Ha ha ha

"What does the CJEU do?"

enforcing the law (infringement proceedings) – this type of case is taken against a national government for failing to comply with EU law. Can be started by the European Commission or another EU country. If the country is found to be at fault, it must put things right at once, or risk a second case being brought, which may result in a fine.

sanctioning EU institutions (actions for damages) – any person or company who has had their interests harmed as a result of the action or inaction of the EU or its staff can take action against them through the Court.

Although they don't directly legislate at a national level, national laws have to comply/align with their decisions and interpretations.

This is why I used "prescribe". They are doing MUCH more than "bringing out methods". They are not a think tank but have real powers which EU countries must align with !
Eliza Hall Jun 19, 2020:
@SafeTex: Why it's not "prescribed" Apart from the basic difference in meaning between prescribed and dégagé, the ECJ cannot "prescribe" anything to a French court unless the case involves EU law (as opposed to French national law). Although you're of course right that the ECJ, like any court, has enforcement powers, it only has them with respect to EU law:

"The ECJ is the highest court of the European Union in matters of Union law, but not national law. It is not possible to appeal against the decisions of national courts in the ECJ, but rather national courts refer questions of EU law to the ECJ." https://en.wikipedia.org/wiki/European_Court_of_Justice

It is very similar to the difference between federal and state courts in the US.

@ AllegroTrans: if this WERE a question of EU law, or if the method of evaluating trademarks had been held to be the correct method by the FR Cour de cassation, then a method of evaluating trademarks absolutely could be "prescribed" by a higher court. That would mean the higher court is telling lower courts that if they're evaluating trademarks, they have to do it this way (following this method). That just doesn't happen to be the case here (nor does "dégagé" mean "prescribed").
SafeTex Jun 19, 2020:
@ Mpoma and all Hello Mpoma

Personally, I don't like "arrived at" as it misses the other part which I said is "prescribe" but if you prefer another verb, that's your choice of course;
But for me, they are not there to simply "arrive" at methods but to make sure that they are adopted by EU courts.
Even "determine" is okay by me as it kind of already has the meaning I'm alluding to.
Just trying to help for what it's worth
Regards
SafeTex
ph-b (X) Jun 19, 2020:
Mpoma, "arrived at" sounds good. So does Liz's "determined by". Have you seen this: MATH. Dégager une inconnue. Déterminer en la mettant en relief la quantité inconnue dans une équation algébrique. (CNRTL)? If you forget about the maths bit, [d]éterminer en la mettant en relief looks like what the ECJ did. Also, just after: "SYNT. (...) dégager des éléments, un principe, des types (...)
liz askew Jun 19, 2020:
ideas:
https://www.linguee.com/french-english/translation/solution ...

Proposed translations

+1
9 hrs
French term (edited): [méthode de ...] dégagée par [la Cour de justice de l'Union européenne]
Selected

[method ...] elaborated by [...]


une méthode d'appréciation globale dégagée par la Cour de justice de l'Union européenne
=>
this Court has examined the question in general (not in just one case) and has created / made its own "global method" for evaluating if there is or not a "risk of confusion" between marks.

The point of "dégager" is in the process of examining a question and "distilling" a solution / arriving to an adopted position, the extent of (or even the total absence of!) powers of enforcement makes no difference whatsoever - it's out of the scope of the term.
Peer comment(s):
neutral SafeTex : The court can sanction and enforce. Maybe "prescribe" is too strong in this case, but "elaborate" misses the point that national courts and legislation does have to align with their "opinion" on a matter.
6 hrs
you are getting sidetracked: EXACTLY the same logic would apply if it was about a totally powerless purely consultative body that was given a matter to debate and would manage to "dégager une position commune sur le sujet"
agree Eliza Hall : This works too. Although in this case, it's not the method that's globale (see discussion).
12 hrs
It's not part of the question, but both would make sense - it's "a generally applicable method" and each time the risk is examined / assessed as an "overall risk" //Thanks!
Something went wrong...
3 KudoZ points awarded for this answer. Comment: "Thanks"
+4
1 hr

determined by

..
Peer comment(s):
agree ph-b (X)
2 hrs
agree Eliza Hall : That works too.
2 hrs
agree GILLES MEUNIER
15 hrs
agree James A. Walsh
20 hrs
Something went wrong...
-1
2 hrs

prescribed by

Lots of possibilities here but I'd go for this as laws prescribe things (provisions) so why not a court in this case.
Reference:

https://www.merriam-webster.com/dictionary/prescribe

Peer comment(s):
neutral Eliza Hall : Courts can prescribe things but the ECJ can't tell the French court what to do under French trademark law. The French court is referencing the ECJ as an example of good reasoning, not as something that they're required to follow.//See discussion
54 mins
If you read their site and powers, you will see that they have enforcing powers , powers to ensure that decisions are followed and powers to sanction. What you added is complete cobblers. Any Brexiter would tell you that the EU court does have REAL power
neutral AllegroTrans : The text is about an assessment method, not a law, so nothing is being prescribed
4 hrs
It's a trademark dispute in the Cour de Cassation. They are looking at the EU Court of Justice's method cos they have to take it into account. The text is not about the assessment method itself but how it should be applied (its application)
disagree Daryo : that's not the meaning of "dégagée" in this sentence - the extent of the powers of that Court (purely advisory or dictatorial powers "de droit divin" or anything in between) is purely a side show - wouldn't matter / change anything to the meaning.
6 hrs
As I said to Eliza, The Court of Justice has sanctioning and enforcing powers. Their "method" of deciding a point has to be adopted by other National Courts. Maybe "prescribed" is too strong, but all attempts lile "elaborated" are too weak.
Something went wrong...
+3
4 hrs

identify


From European sources (referring to your "Euro-legal-buzzword" in the discussion):

nous pourrions ainsi (...) dégager les grandes tendances;
>
" it would then be possible to (...) identify trends"
Both versions here: https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX:52...

analyser et évaluer les tendances de l'emploi en vue de dégager des options politiques ;
>
"analysis and evaluation of employment trends for the identification of policy options"
Both versions here: https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=LEGISSUM...


aider la Commission à évaluer l’évolution des politiques en matière de lutte contre la corruption (...) ainsi qu'à dégager les tendances dans l'UE en matière de corruption;
>
"to help the Commission assess the evolution of anti-corruption policies (...) and to assist the Commission in identifying EU trends in corruption;"
Both versions here: https://eur-lex.europa.eu/legal-content/FR/ALL/?uri=celex:32...

I've no idea whether "identify a methodology" is good English, but I found 1,820,000 ghits for it. I'll let you check how reliable and relevant each of them is!


Peer comment(s):
agree Eliza Hall : That's a good solution. It retains the sense of "determined from their analysis" that you get from dégagé.
3 hrs
agree James A. Walsh : "identified by" works for me too.
17 hrs
agree Cyril Tollari
3 days 2 hrs
Something went wrong...
7 hrs
French term (edited): dégageé par Cour

deployed/used/implemented by the Court

I read this as simnply explaining the method used by the Court
Peer comment(s):
neutral Daryo : yes and no, as the key point is: the Court is to one that made / created this "global method for ...", it's not some already existing method that they just apply // that's the whole point of using "méthode dégagée par..." instead of "employée par"
2 hrs
the fact is, the Court uses the method
Something went wrong...
3 hrs

to bring out/distill; to reach

They're saying that the ECJ examined trademark law and determined, from that analysis, that the proper method for evaluating the risk of confusion between two trademarks is XYZ (the method described in the first paragraph: "une appréciation globale fondée sur l'impression d'ensemble produite par les marques...").

That succinctly described (one sentence) conclusion as to the proper evaluation method was "dégagé" from the much larger mass of facts and rationales that the ECJ examined. The closest translation would be "brought out" or "distilled," but colloquially in English we would be more likely to just say the ECJ "reached" that conclusion.

--------------------------------------------------
Note added at 7 hrs (2020-06-19 22:34:30 GMT)
--------------------------------------------------

PS: globale does not modify méthode in the FR original ("Cette méthode d'appréciation globale..."). It modifies appréciation. So the translation I'm suggesting here is, "This overall appreciation approach that the European Court of Justice reached/brought out implies a simultaneous and holistic comparison..."

It would be more colloquial, even in legal texts, to just say "used." And that's fine too, although it loses the nuance of "dégagé."

Re what modifies what, the likelihood of confusion analysis in US trademark law is very similar: "We turn next to the question of likelihood of confusion. . . . The similarity of the marks is a key factor in determining likelihood of confusion. To apply this factor, courts must analyze the mark’s overall impression..." https://www.likelihoodofconfusion.com/side-side-comparison-d...
Peer comment(s):
neutral SafeTex : "bring out" makes the method sounds like they are marketing it, "distill" is wrong here as it means "reduce to its essence" and you don't "reach a method" (invent, set out, recommend etc.)
14 mins
disagree AllegroTrans : "..overall method of asessment brought out/distilled/reached by the ECJ"; none of these make sense
3 hrs
Globale doesn't modify méthode; it modifies appréciation. I just added to my answer to explain that.
agree Daryo : "distilled" is close to the right idea // elaborated?
5 hrs
Yes, "elaborated" could work too. The basic idea is that they considered a problem (how to analyze likelihood of confusion in trademarks) and came up with an approach for doing so.
Something went wrong...
-1
11 hrs
French term (edited): dégagee

tested

According to the below considerations from 'Le Dictionnaire Juridique', the said interpretation method has been used to determine the meaning of the legal documents (contracts, conventions, etc...) opposing two parties over and over, which is why my translation refers to the concept of testing.


Lorsqu'elle porte sur une convention à propos de l'exécution de laquelle les parties sont en conflit, l'interprétation en est confiée à un Tribunal, ou, à un arbitre. Pour DEGAGER quel est le sens de la disposition du contrat qui constitue l'objet du différend, le juge cherche quelle a été leur commune intention. L'interprétation des termes d'une convention appartient souverainement aux juges du fond : en revanche la qualification des conventions, c'est à dire, la définition des effets de droit qu'elles produisent, est une question susceptible de faire l'objet d'un pourvoi en cassation. A l'occasion d'un litige sur les modalités de l'exécution d'un contrat, dans une situation juridique donnée, l'interprétation peut éventuellement porter sur le sens à donner au texte d'une Loi. Et, à défaut de manifestation claire, et pour interpréter le sens d' une clause ambiguë d'un acte authentique de vente, le juge peut se référer au compromis de vente sous seing privé pour connaître la commune intention des parties. (C. A. Limoges (ch. civ., 2e sect.), 22 juin 2005 - BICC n°671 du 15 novembre 2007). Selon le Code de la consommation, les contrats s'interprètent dans le sens le plus favorable au consommateur ou au non-professionnel


Source: https://www.dictionnaire-juridique.com/definition/interpreta...
Peer comment(s):
neutral Eliza Hall : For your example ("Pour DEGAGER quel est le sens de la disposition du contrat..."), we would say "determine" in EN (see, e.g., https://www.upcounsel.com/contract-interpretation).
10 hrs
Here, it is the METHOD that is 'dégagée', not a 'disposition d'un contrat'
neutral Daryo : not quite - you could see the whole process as "testing the meaning of a term" but the end result is that they "created / made / ..." their own interpretation of the term.// === "dégager" is the final result ===
13 hrs
disagree AllegroTrans : Nothing is being tested; Courts don't conduct experimentation
3 days 9 hrs
Something went wrong...
-3
1 hr

to release from responsibility

The word is from the following sample:

The method of global estimation or assessment, which is released from responsibility by the European Union court of justice, implies a simultaneous and synthetic comparison of the signs of conflict and product services which they design.

--------------------------------------------------
Note added at 3 days 6 hrs (2020-06-22 21:35:34 GMT)
--------------------------------------------------

It's about a method of assessment and valuation. Since a method does not normally get 'released from responsibility', instead the method could be 'given', 'denoted' or 'tested' by the European court of justice.
("Cette méthode d'appréciation gobale dégagée par la Cour de justice de l'Union européenne inplique une comparaison simultanée et synthétique des signes en conflit et produits ou services qu'ils désignent.")
Peer comment(s):
disagree Eliza Hall : Not what this means at all.
2 hrs
disagree AllegroTrans : That is one meaning, but not the meaning in THIS source text
5 hrs
disagree Daryo : what you call a "sample" IS NOT a "sample" of the real world use of the term by competent writers in a relevant context - THAT would be a convincing / relevant reference, not your own attempts at literal "translation by dictionaries".
8 hrs
neutral SafeTex : Lisa: A method cannot be released from responsibility. Methods do not have responsibilites. You are doing yourself more harm than good by posting on Proz as some potential client may actually see your posts !!!
17 hrs
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