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Today’s word is monorchic – it’s not true about the Albert Hall.

I have only ever heard a mixed version of that song, without the Albert Hall.

But who was Colonel Bogey? And what happened to the billy goat?

(Thanks to Trevor for the scholarly angle)

I have mentioned Flocke here before, but it was only at the beginning of November that I got round to seeing her. It was fairly sunny and she was asleep. It was the school holidays, and a mother kept saying to her child, ‘Sie ist eine Schlafmütze’ (which was slightly more tolerable than the man who was making snorting noises at the red river hogs).

This was just in time for this nice article on Knut, Flocke, and Co: the bear facts revealed by Birgit Clark in the online version of the Journal of Intellectual Property and Practice

Introduction with pictures and links at IPKat (but the article itself has pictures and links).

Here is the abstract:

Legal context: It appears that Germans just cannot get enough of their bears these days, whether it is cuddly Knut, Berlin zoo’s celebrity polar bear with a Vanity Fair magazine cover, cute Flocke, Nuremberg zoo’s polar bear cub with her own website and marketing machine, or little Wilbär, their understated polar bear cousin from the Stuttgart zoo. In the context of marketing the birth of high-profile zoo animals, some interesting legal issues arise.

Key points: The article aims to give an account of how the Germanic bear craze started and looks at the marketing and merchandise machinery involved. In particular, it discusses the trade mark disputes over polar bear cub Flocke, as decided by the Regional Court of Nuremberg-Fürth in March 2008, and the trade mark dispute over Austrian panda bear cub Fu Long.

Practical significance: The article examines some of the trade mark law issues surrounding the marketing of the birth of high profile zoo animals. It examines the financial worth of polar bear trade marks, the perils of public naming campaigns, and shows how serious problems can result from not taking trade mark protection seriously at an early stage.

The article also deals with the ‘problem bear’ Bruno, who has now been stuffed and can be seen in Munich.

Query from a colleague:

When the new Civil Procedure Rules were introduced in England and Wales in 1999, some terms were changed, e.g. “action” was generally replaced by “claim”, “plaintiff” by “claimant”, etc. What I am wondering about is this: How do you differentiate between Klage = “claim” and Anspruch = “claim” now?

My answer:

I must say that I hate the way English law changes terminology while the meaning doesn’t change that much. They did it with custody of (parental responsibility) and access to (contact) children after divorce too. But the word custody is internationally understood.
None of my work goes only to the UK, and most goes outside. I therefore always write ‘plaintiff’ and not ‘claimant’. I think I would do that even if I did work for a UK client, but if the client didn’t like it I’d change it. In Ireland and the USA, the term is still plaintiff.
As for claim, I think I would use the same word with both meanings, and hope that the context would make it clear what was meant. I most certainly use claim for Anspruch, I think I always have. I don’t think it can have lost that meaning in England, even if it’s taken on another one too. I do use action.
I am probably the wrong person to ask – you need to ask people who work for the UK.

My question to readers:

Do lawyers and translation companies in England and Wales insist on the term claimant for Kläger and claim for Klage?

There’s nothing wrong with the term plaintiff, but if the population of England have taken it over lock stock and barrel it has become the correct choice.

A different but related question: if people translate for Scotland, do they always use Scottish legal terms? I know you can study English law at Scottish universities – the population of Scotland is very much smaller than that of England and Wales, so not everyone wants to qualify in Scotland, and to qualify in England and Wales they want to have studied English law as well as Scottish.

LATER NOTE: I have now heard from two solicitors who deal with work from Germany. The conclusion from London is:

As a practitioner, I would certainly now expect “Kläger” to be translated as “Claimant”. That is how that party will be referred to in the Statements of Case (previously “pleadings”!), Orders, the Judgment etc. Using the term “Plaintiff” risks the criticism that the translator is unfamiliar with the correct terminology.

I therefore conclude, logically, that all translations relating to work for the courts in England and Wales must use the new terminology (I’ve discussed this before). And in consequence, probably all work for the UK will need to use it.

It was pointed out that the change from third party to part 20 defendant has been reversed.

The Bündnis für das deutsche Recht (discussed earlier here and here) has now produced a bilingual brochure, available as a PDF on the site of the Deutscher Richterbund. (On the Deutscher Richterbund, the German American Law Journal has an entry today).

The brochure is about 30 pages in length and summarizes the reasons why businesses should base their contracts on German law rather than U.S. or UK law – there are a few explicit comparisons to the detriment of the latter from the Global Competitiveness Report 2008-2009. It has a preface by the German Minister of Justice, who looks younger with every photo, and at the end the responsible organizations are named – the various German Bar, judges’ and notaries’ associations, the editorial team (five lawyers) and the translation company (Stoke-Borchert Corporate and Financial Translations in Hamburg).

I think it’s a bit of a thankless task to translate a text like this, which probably has to be done in a short period of time, where the German has a tendency to be a bit pompous and the English is not just describing a legal system but also trying to market it at the same time. The following remarks on terminology choices are not intended as a criticism of the translation – the terminology choices are quite defensible.

One thing that strikes me, having read only part of the brochure, is that it doesn’t mention the biggest barrier against German law and in favour of US and UK law: language.

A couple of terminology choices struck me. Firstly, on page 5 and elsewhere, kontinentaleuropäisches Recht is translated as Continental European law. Normally it would be civil law, which has the problem that many people don’t understand the term. I don’t think the fact that it appears under a photo of the European Community flag made this translation essential, and it is not familiar, although it presumably conveys the right idea. I think it is really a new creation (Google has 51 ghits for UK sites, 70 for DE sites, and 840-odd overall, which isn’t many). I’m not suggesting it wasn’t the best choice in the circumstances, though.

Another choice was to refer to GmbH, by way of explanation, as private limited company (quite common) and AG as public limited company (not common and not usually advised, but there is no really good solution – stock corporation is the common term, which one could find fault with).

Personen- und Kapitalgesellschaften are translated as partnerships and corporations limited by shares, rather than the usual British partnerships and companies. Presumably this is an attempt to find a term that works in the U.S. as well, although company is used frequently too.

Something went wrong at the printer’s or in processing – when doesn’t it? – when German inverted commas were used (and why write “GmbH” in inverts in the English text?). Some of the word divisions look a bit iffy, but that is par for the course, and in any case I am not sure they aren’t American. But I haven’t seen the paper version – it may be that the inverted commas were OK there (I don’t have much hope, though, from past experience).

The Deutsche Bahn has cut down a lot of trees round the pond.

Just another desperate attempt to make friends, I suppose. I wonder if the kingfisher is still there.