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French to English translations [PRO] Law/Patents - Law: Patents, Trademarks, Copyright / infringement dispute
French term or phrase:consistance
From a written submission disputing an infringement seizure. The writer makes the point that the word has no usual meaning in the patent field and I have to agree. Any suggestions?
Les ordonnances autorisent également [the company] à découvrir « la nature, l’origine, la destination et l’étendue de la contrefaçon » ainsi que la « consistance » de la contrefaçon. L’article R615-2, dernier alinéa, ne contient pas de mention de « la destination » ni de la « consistance » de la contrefaçon. Ce qui pourrait relever de la « consistance » de la contrefaçon n’est pas expliqué dans la requête, et ce terme n’a pas de signification usuelle dans le domaine des brevets.
Explanation: Consistance in this context is just another way of saying what something is composed of or what it consists of ("en quoi consiste X?"). If the turn of phrase were different, this word could be rendered as "constituting" or similar.
"CONSISTANCE: 1. DR., vieilli. Ensemble des éléments qui composent une succession, un domaine et ses dépendances, la nature et l'étendue d'une terre. Synon. état, contenance. Héritage en consistance de...; donner un état de la consistance d'une terre; la consistance des effets et des dettes d'une succession (cf. consister)." https://www.cnrtl.fr/definition/consistance
Same meaning, different legal context:
"Définition et consistance du domaine public" (clunky translation: "Definition of, and what constitutes, public property" -- this is about state-owned property, not "public domain" in the intellectual property sense): https://cours-de-droit.net/la-consistance-du-domaine-public-...
A few uses in context:
"Le propriétaire d'une demande de brevet... a la possibilité de faire la preuve par tous moyens de la contrefaçon dont il se prétend victime....
Il est par ailleurs en droit de faire procéder, sur ordonnance du président du tribunal de grande instance du lieu de la contrefaçon présumée, par tous huissiers assistés d'experts de son choix, à la description détaillée, avec ou sans saisie réelle, des produits ou procédés prétendus contrefaits.... Dans la même ordonnance, le président du tribunal peut autoriser l'huissier à procéder à toute constatation utile en vue d'établir l'origine, la consistance et l'étendue de la contrefaçon."
Until you start making the difference between the process and the end result.
Just because the end result looks the same (what "un huissier" is perfectly competent to assess) doesn't prove always / automatically that the same process was used (THAT is far trickier and requires an expert opinion).
If you have a patent for car tyres that can do 1.000.000 km, that doesn't mean that all and any tyre that can do 1.000.000 km must have been made using your patent.
or a better example: you find a way to make tyres of all imaginable colours, and get a patent. Someone else selling coloured tyres could have used their own process, not necessarily yours.
But let's not digress. Anyway it wouldn't change much the meaning of "consistance de XYZ", it would still be "= en quoi consiste XYZ"
Joan's post says the context is the seizure of allegedly infringing goods. IOW, Party A holds a patent on XYZ process; Party B allegedly made goods using that process and tried to import them into A's country; A thus went to court to stop the importation, and the goods now may be seized (from whatever customs warehouse they're currently in, presumably).
As part of the process of deciding whether to seize them, a huissier will go examine them and report back to the judge re: their nature, origin, what they consist of, etc.
"what are the elements / stages of the process" -- the huissier won't speak to that, as that is all spelled out in the patent. The court knows from the patent what the process is. The huissier helps determine if it's likely the goods were made using that process.
if it's a "process" that is the object of the dispute, the idea of using "un huissier" seems to me rather odd.
You would more expect an expert (in that narrow field) to called to analyse the "copied process". It would be rather a tall order to expect from your average "huissier" to understand the fine points of some industrial process.
OTOH, the ST surely must make sense - once you have ALL the elements of this story.
It does make it clearer what "consistance" would mean: what are the elements / stages of the process -including all the settings that would make some product "unique" (I remember the story of an expert that visited the factory of the competion - they showed him everything - no big deal as everyone was using more or less the same equipment - expect few settings that made all the difference.)
I think "substance" should be fine too, like what it is in substance (in essence). Don't worry about the heated discussion but it's an ongoing thing unfortunately. SafeTex
The job is due, so I am using "substance" for know, with a query to client. I will leave the question open for a bit in case I do hear back, but I frequently don't. Eventually I think there will be a lot of commentary when the matter is finally adjudicated. I will try to look for it but I'll probably have moved on to the next crisis (occupational or societal) by then.
I've noted Cyril's agree with you and therefore may accept that it is not "similarity" after all.
But why then did you disagree with François who said "elements" and noted "consistance = les éléments qui constituent la contrefaçon
As philgoddard says when he agreed with Francois: "Eliza, if you're not careful you'll become another XXXXX, scattering unjustified disagrees left, right, and centre.
Others have commented on the past on this too.
You may be right on this occasion but you shoot down very similar suggestions to your own at the same time which causes animosity and you often disagree with answers that are chosen at the end of the day (by others or by the asker).
Regards
SafeTex
PS I will withdraw my suggestion but I will vote for François who was the first to get it right. Not for your "synonym" in this context.
@PhB: "ETA" means "edited to add." Sorry for any confusion.
@AllegroTrans: "we need to do is to look at "la nature, l’origine, la destination, l’étendue and la consistance" of a patent infringement" -- no, not at all. The nature, origin, purpose, etc. is of the counterfeit goods themselves. What do they consist of? What are they made of? Where did they come from? etc.
@SafeTex and Joan Berglund: "ce terme n’a pas de signification usuelle dans le domaine des brevets" -- Right, it's not a term of patent jargon. It's a general legal term that means what something consists of, is comprised of, etc.:
"Héritage en consistance de...; donner un état de la consistance d'une terre; la consistance des effets et des dettes d'une succession (cf. consister)." https://www.cnrtl.fr/definition/consistance
Ce qui pourrait relever de la « consistance » de la contrefaçon n’est pas expliqué dans la requête, et ce terme n’a pas de signification usuelle dans le domaine des brevets.
This last part actually warns us that any "normal" interpretation may be lacking or wrong.
Anyway, a lot of us (would) agree with "substance" but unfortunately, it's not up as a suggestion.
What needs to be remembered here is that French often uses discrete words to express notions that in English can be expressed more fluidly. Instead of searching for a precise meaning for "consistance", what we need to do is to look at "la nature, l’origine, la destination, l’étendue and la consistance" of a patent infringement and construct a meaningful sentence without dwelling too much on any particular word. We all know that lawyers are fond of an overuse of synonyms.
This is about a patent, not a TM. The activity that would infringe a patent is completely different than what would infringe a TM. But I'll still respond to your hypo: "Let's imagine we have a trademark that 'consists of' say three partially overlapping squares and a circle somewhere in the middle... Is this... an infringement of a protected trademark?"
We cannot possibly know at this stage -- the bit you keep missing is that all these things ("la nature, l’origine, la destination et l’étendue de la contrefaçon") are observed and reported on by a huissier who is standing in the warehouse (or wherever) examining the counterfeit goods. And the huissier's job is NOT to determine whether anything was infringed. That's the job of the court (judge or jury, depending how the trial is conducted).
All the huissier is doing is writing up a report that will be provided to the court and the owner of the IP (see the links in my answer). To use your example, the report might include this: "The alleged counterfeits consist of 6 boxes of t-shirts, each shirt being marked with three partially overlapping squares and a circle in the middle."
So lets say for a moment that your answer is right ("what it consists of")
Now let's imagine we have a trademark that "consists of" say three partially overlapping squares and a circle somewhere in the middle, maybe all in different colours.
Is this trademark an infringement of a protected trademark?
Who the heck knows with your translation as it is completely detached from the idea of SIMILARITY.
To know if it is an infringement, we need to know BOTH designs and therefore the question of SIMILARITY obviously comes into play in patents
Or to use the root "consistent", if the trademark is consistently like the protected trademark, it is deemed to be too similar and thus a copy of sorts.
@SafeTex, I made my suggestion before reading the discussion, but if you scroll down to the first discussion post you'll see that native FR speaker PhB made the same suggestion I did as to what "consistance" means, and like me, he supported it with solid references.
It doesn't mean "nature." It doesn't mean "extent" or "scope," or "similarity."
Consistance, in law, means what the thing consists of, what comprises it, what constitutes it. PhB and I have both provided links to that effect, and Daryo has agreed as well.
The person who establishes the "consistance" of the seized goods is the huissier who examines and documents them, in the warehouse (or wherever) that they're held in. Whether the seized goods are similar to trademarked goods isn't something a huissier is competent to determine; that question will be for the judge or jury (depending on the legal system and type of trial).
And since this is about patents anyway, the question of similarity doesn't matter -- two goods can be very similar without one of them infringing the patent covering the other.
Yet again you come in with a suggestion while disagreeing with other useful and valid suggestions. This is about patented products and trademarks, counterfeits and copies.
The question is how "consistent" (SIMILAR), the counterfeit/copy is to the patented product/trademark.
I think that everyone was on this line of thought more or less
It's the similarity with the protected product/trademark that counts of course.
Even suggestions like "substance", "elements" or "extent" probably have "similarity" in mind even if not always categorically stated.
As AllegroTrans says himself, when he suggests "extent"
Extrapolating, perhaps this is about the extent of the trademark infringement
You are a real pain with your disagrees as you often shoot down useful ideas and even right answers only to put up something yourself that simply does not hold water. It's sad and counterproductive for the group in my humble opinion.
consistance de la contrefaçon = en quoi consiste la contrefaçon?
OTOH this one is self-explanatory:
la destination de la contrefaçon = for what kind of clients / markets the counterfeit goods are intented i.e. for the same clients / markets are the "real thing" or for those well aware they are buying just knock-offs. The damage caused is far from being the same in both cases.
Which I guess is similar to nature and also fits with your links. Mostly I chose it because it was too vague to be too far wrong.
ph-b (X)
France
I agree it means nature
15:39 Aug 8, 2020
and scope too. Repetitions are not unheard of in legal texts or lawyers may see fine differences between otherwise seemingly identical terms. There's also the possibility that the difference here lies in the fact that the first two refer to a theoretical (legal?) definition, whereas consistance as used in different fields (see dicos) usually refers to the reality and the appearance of something (la consistance d'une succession, de la sauce béchamel), in this particular case perhaps what la contrefaçon looks like/takes the form of.
Explanation: Suggestion based on the fact that I see 'consistance' in French property deeds to describe the area of land in the Cadastre. Extrapolating, perhaps this is about the extent of the trademark infringement
AllegroTrans United Kingdom Local time: 04:39 Works in field Native speaker of: English PRO pts in category: 35
peer agreement (net): -1
