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Legal Aspects of Marketing Content: Things to Consider when Translating

Marketing copy and legal content are not as separate as they appear. There are, in fact, texts in which we may perceive a subtle interplay of the two fields.

The marketing and legal fields as they relate to translation may appear to be quite different from one another. In a way, they may even be perceived as opposites. When working with marketing copy, a rather free translation, or transcreation, is often desirable. But translating legal content requires the translator to scrutinize the meaning of each word—considering both ordinary and legal usage—and to stay close to the source text.

Marketing copy is meant to persuade its audience to take action and buy a certain product or service.1 Its primary function is generally an appellative one. Its secondary function may be informational: to explain about a certain product, service, or cause (along with the company or organization behind it). The translation should have the same function as the original—to persuade the audience to take the desired action. For this reason, the translation can deviate from the original. It can and should be creative. But the translator should be able to identify the important elements and the function of the source text and preserve them in the target text.2

Legal texts seem to be at home on the opposite side of the translation world, together with legalese, nominalization, and passive voice. In reality, however, marketing copy and legal content are not as separate as they appear. There are, in fact, texts in which we may perceive a subtle interplay of the two fields. These are challenging because they require specialization in one field and knowledge in another.

So, while the translation of marketing copy does require some creativity, it may also require some knowledge of law. This is because marketing content will sometimes include legal terms that have to be translated under careful consideration of the law of the source country and that of the target country to ensure clear communication and avoid confusion. Depending on their subfields of specialization, marketing translators or transcreators may not encounter such terms very often, but they should be prepared to recognize their relevance in a legal context and be able to handle them appropriately.

Legal Considerations

In everyday life, we may not be very aware of legal aspects, but we’re surrounded by them—be it when we buy a cup of coffee with a label that warns of its hot contents, when we read a restaurant menu with allergen information at the bottom of the page, or when we walk into a store and see a sign that lets us know that the floor is slippery. Translators may encounter these warnings when translating product manuals or signs or when localizing websites. Marketing translators may also encounter copy that mentions warranties or that makes a statement about a product.

A professional legal translator will likely spot legally significant terms quite easily and will know how to translate them appropriately. But a legal translator will probably not be the one working on marketing copy. It will be the marketing translator or the transcreator. Because of this, translators specializing in the marketing field may benefit from being familiar with the basics of tort law, consumer law, and intellectual property law. Knowing the basics of these legal areas will help translators identify terms of legal relevance and find appropriate solutions for the target text.

Warranty

Let’s look at a U.S. English>German (Germany) example. One of the terms translators may encounter when approaching marketing-legal content is the term “warranty.” Langenscheidt’s Dictionary of Law offers the German translations Garantie, Gewährleistung, and Zusicherung.3 Of course, translators cannot simply choose the translation that sounds best or that they may have seen used frequently elsewhere. To provide an adequate translation, the translator will need to 1) know the context surrounding the term, 2) understand how terms such as “express warranty” and “implied warranty” relate to U.S. consumer law, and 3) know the meaning of terms such as Gewährleistung and Garantie in the German legal system.

Trademarks

Just like copywriters, marketing translators should also be familiar with the basics of trademark rights and know how to handle trademarks appropriately. One important issue to be aware of in this context is generic use. In the U.S. legal system, a mark may be considered abandoned if it becomes a generic name for the goods or services offered under the mark.4 Therefore, knowing what constitutes a generic name and what is a mark plays a significant role in the creation and translation of marketing copy. Translators should have the expertise to be able to identify trademarks and generic names in the source text and pay special attention to them and their correct usage when creating the target text.

Spinning®, for example, is a registered trademark owned by Mad Dogg Athletics, Inc. and the generic term here would be “indoor cycling.”5 VELCRO® is a registered trademark of Velcro BVBA, and possible generic names here are “hook-and-loop fastener” or “touch fastener.”6 The Associated Press recommends using “a generic equivalent unless the trademark name is essential to the story.”7 A similar suggestion can be found in The Chicago Manual of Style.8 As always, context is key in the realm of translation, but it can be beneficial for marketing translators to familiarize themselves with the basics of the law of trademarks as well as the proper usage of trademarks and generic names.

Ambiguity

Ambiguity is something else to look out for. Translators may come across ambiguous statements in promotions or even in the fine print accompanying them. In such cases, it’s a good idea to ask the client for clarification.

A Unique Niche?

Approaching such hybrid marketing-legal content requires expertise in the marketing field and knowledge in the field of law. Translators need to be prepared to conduct thorough (and often time-consuming) research in two legal systems. As with other fields of translation, terminology management is key when it comes to working efficiently and creating high-quality target texts.

There are various ways for marketing translators to prepare themselves to take on such twofold texts—from self-study of relevant topics to taking courses at a college or university. Considering the challenges and rather demanding requirements of marketing-legal content, this combination of two fields of expertise could be a unique niche for translators who specialize in one field and have thorough and relevant knowledge in the other.

A Few Helpful Resources

A few resources that I’ve found to be quite helpful in regard to U.S. law are Intellectual Property for Paralegals: The Law of Trademarks, Copyrights, Patents, and Trade Secrets by Deborah E. Bouchoux, Tort Law: Concepts and Applications by Hillary J. Michaud, and Problems and Materials on Consumer Law by Douglas J. Whaley.9

Notes
  1. Atkinson, Ian. Copy. Righter. (London: LID Publishing Ltd., 2011), 28 and 39.
  2. Albrecht, Jörn. Literarische Übersetzung: Geschichte, Theorie, kulturelle Wirkung (Darmstadt: Wissenschaftliche Buchgesellschaft, 1998), 259–266. Also see: J. Albrecht’s discussion of literary translation, especially in regard to function, purpose, and important elements to keep in target texts.
  3. Langenscheidt ALPMANN Fachwörterbuch Kompakt Recht Englisch, s.v. “warranty.”
  4. 15 U.S.C. § 1127 (2006).
  5. “Legal and Trademark,” http://spinning.com/legal-trademark.
  6. “Information on Patents and Trademarks,” www.velcro.com/legal-and-privacy/legal/patents-and-trademarks.
  7. The Associated Press Stylebook and Briefing on Media Law 2011, 46th edition (New York: Basic Books, 2011), s.v. “trademark.”
  8. The Chicago Manual of Style, 16th ed. (Chicago and London: The University of Chicago Press, 2010), 8.152.
  9. Bouchoux, Deborah E. Intellectual Property for Paralegals: The Law of Trademarks, Copyrights, Patents, and Trade Secrets, 3rd edition (Clifton Park: Delmar, Cengage Learning, 2009). Also see: Michaud, Hillary J. Tort Law: Concepts and Applications (Boston: Pearson Learning Solutions, 2010) and Whaley, Douglas J. Problems and Materials on Consumer Law, 5th edition (New York: Aspen Publishers, 2009).

Denise Josey is an English<>German translator specializing in marketing translation and website localization with a special focus on fashion and tourism. She has a BS in legal studies from the University of Maryland University College and a PhD in translation studies from the University of Heidelberg, Germany. She also has a certificate in copyediting from the University of California San Diego Extension. While working on her doctorate, she taught English>German translation courses at the Institute of Translation and Interpreting at the University of Heidelberg. Her research interests include web localization, legal translation, transcreation, and digital teaching. Contact: denisejosey@hotmail.de.
 

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